Opinion
B324998
09-19-2023
In re N.Y., a Person Coming Under the Juvenile Court Law. v. T.Y., Defendant and Appellant. v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 20LJJP00198 Stephanie M. Davis, Judge Pro Tempore. Affirmed.
Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
WEINGART, J.
T.Y. (Father) was incarcerated on gang-related robbery and weapons charges before his daughter N.Y. was born in 2018, and remained in prison until he was paroled in 2022. While Father was incarcerated, the Los Angeles County Department of Child and Family Services (DCFS) began dependency proceedings involving N.Y. after her mother T.J. (Mother) suffered domestic violence at the hands of another individual. On December 1, 2020, the juvenile court found under Welfare and Institutions Code section 361.5 that due to the length of Father's incarceration and N.Y.'s young age, it was detrimental to provide Father with reunification services. The juvenile court removed N.Y. from Father's and Mother's custody under section 361. After Father's release from prison in 2022, Father filed a section 388 petition seeking custody of N.Y., which the juvenile court denied. Soon thereafter, on October 28, 2022, the juvenile court terminated the parental rights of Mother and Father to N.Y.
All unspecified statutory references are to the Welfare and Institutions Code.
Father now seeks leave to belatedly appeal matters decided at the disposition hearing, which occurred nearly two years before his notice of appeal was filed. We excuse his tardy appeal because the juvenile court failed to properly advise him of his appellate rights. As for the disposition hearing itself, Father argues he received ineffective assistance of counsel when his attorney did not request placement under section 361.2 and instead requested reunification under section 361.5. Father also argues the juvenile court erroneously failed to articulate the facts on which it based its determination that N.Y.'s removal from Father was necessary. Father lastly contends the juvenile court erred in denying his section 388 petition.
Because the record before us does not demonstrate that there could be no satisfactory explanation for Father's counsel requesting reunification rather than placement, Father has not established ineffective assistance of counsel. He therefore has forfeited the argument on direct appeal that the juvenile court should have applied section 361.2 at the disposition hearing back in December 2020. Additionally, although the juvenile court did err in failing to state the facts supporting its removal order as required by section 361, subdivision (e), Father has not demonstrated a reasonable probability that if the court had done so, the result would have been more favorable to Father. Nor has Father demonstrated any abuse of discretion in the court's denial of his section 388 petition. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Giving Rise to a Section 300 Petition and the Minor's Detention
Father was arrested in 2017, before N.Y.'s birth, and the record suggests he remained in custody pending his criminal trial. On June 11, 2018, Father pleaded nolo contendre to charges of robbery, possession of a firearm by a person on probation, and possession of ammunition, along with a special allegation that his offense conduct was committed for the benefit of a criminal street gang.
On or about January 18, 2020, when N.Y. was nearly two years old, DCFS received a referral concerning a domestic violence incident between Mother and her boyfriend Robert S. On March 12, 2020, a second domestic violence incident resulted in Mother's hospitalization. While in the hospital, Mother asked maternal grandmother to take care of N.Y., as N.Y. and Mother had from time to time lived with her. Maternal grandmother told the social worker she wanted custody of N.Y.
DCFS reported Father never met N.Y., had not been involved in her care, and had no significant bond with her. DCFS stated Father was sentenced to a total of 15 years in prison.Father was incarcerated in North Kern State Prison, and Mother and paternal aunt expected Father to remain incarcerated until October 2022, when they believed he would become eligible for parole. DCFS's investigation further revealed that Father, born in June 1996, had a criminal history as a minor and as an adult; before the offenses that led to his current incarceration, he had been arrested in March 2014 for robbery, November 2014 for petty theft, March 2015 for assault with a deadly weapon that was not a firearm, and November 2015 for robbery of an inhabited dwelling.
Father's briefing also describes his sentence as being 15 years. The minute order from Father's sentencing, however, appears to indicate the court sentenced him to a total of 6 years and four months in prison and pursuant to a plea agreement stayed a 10-year gang enhancement (see Pen. Code, § 186.22, subd. (b)(1)(C)).
On March 20, 2020, the juvenile court ordered N.Y. removed from Mother and Father pursuant to section 340, and N.Y. remained in maternal grandmother's home.
B. The Petition, First Amended Petition, and Father's Pre-disposition Involvement in the Proceedings
On March 26, 2020, DCFS filed a section 300 petition, alleging that, inter alia, domestic violence between Mother and Robert placed N.Y. at risk of serious physical harm.
At the April 1, 2020 detention hearing, the juvenile court found DCFS established a prima facie case that N.Y. was a person described by section 300. It ordered that N.Y. continue to be detained with maternal grandmother. The court also made orders to facilitate Father's presence at the arraignment on the petition.
On or about April 23, 2020, DCFS received a letter from Father stating that he wanted to be physically present at all court hearings concerning N.Y. Maternal grandmother also received a letter from Father, asking that she bring N.Y. to visit him in prison. Maternal grandmother stated she did not feel comfortable doing so due to the COVID-19 pandemic.
In May 2020, Mother gave birth to N.Y.'s half-sibling and Robert's daughter, N.S. N.S. tested positive for substances at the time of her birth, and DCFS filed a first amended petition, alleging Mother's substance abuse created a risk of serious physical harm to N.Y. as N.S.'s sibling. DCFS filed a separate petition concerning N.S. Neither the original petition nor the first amended petition concerning N.Y. included any allegations against Father.
During the pendency of the dependency proceedings, Mother and Robert had a second child, son Na.S. Neither N.S. nor Na.S. is a subject of this appeal and complete records relating to their proceedings are not included in the appellate record.
On August 4, 2020, the juvenile court held a detention hearing on the first amended petition. It appointed counsel for Father, and Father appeared via videoconference for the hearing. Father filed a notification of mailing address that day, listing a P.O. box at North Kern State Prison in Delano. He also filed a statement regarding parentage in which he stated, "My mother has brought [N.Y.] to see [me] more than once. I held her, I rock[ed] her to sleep. I also play[ed] with her." Father further stated N.Y. had spent time with "[m]y mother, her aunts and uncles. She met her grandpa. She has also met my whole family." Father listed paternal grandmother and a paternal aunt as relatives with whom N.Y. could be placed, and the juvenile court ordered DCFS assess paternal relatives for placement.
This form does not require a signature be made under penalty of perjury.
Paternal aunt advised DCFS that she and paternal grandmother were interested in providing care for N.Y. Paternal aunt stated both her home and paternal grandmother's home were previously approved for foster care placement by the Resource Family Approval Program (RFA) and each of them had a cousin under their care. DCFS reported paternal aunt was approved for "one child, age 2-17." Paternal grandmother's home was approved for "specific relative child only," and it was "RFA surrendered" in 2020. Therefore, both paternal relatives required new RFA approval to have N.Y. placed with them. DCFS further reported that N.Y. and N.S. currently lived together at maternal grandmother's home, where N.Y.'s needs were met. The social worker opined it was not in N.Y.'s best interest to move her from her current placement.
C. Jurisdiction and Disposition Hearings
On September 2, 2020, the juvenile court held a combined jurisdiction and disposition hearing. Father participated by telephone and submitted to the court's jurisdiction. As to disposition, Father's counsel observed DCFS recommended no reunification services for Father, and thus, requested a contested hearing. Counsel further requested an updated photograph of N.Y. be provided to Father, that low and no cost referrals be provided to Father at his place of incarceration, and that N.Y. be placed with paternal aunt and paternal grandmother, or in the alternative, that those relatives be allowed visits with N.Y. and facilitate visits between N.Y. and Father while he was incarcerated. The juvenile court responded that it was not inclined to separate N.Y. and N.S., as doing so would not be in their best interest. Counsel for DCFS also observed that paternal relatives were still in the process of becoming RFA approved. The record does not thereafter address their progress in this regard.
The juvenile court sustained the allegations in the petition as to Mother. It found Father to be N.Y.'s presumed father and concluded he was nonoffending. It ordered DCFS to provide Father with a photograph of N.Y., provide Father with "low cost/no cost referral[s]" "for his place of incarceration," assess paternal relatives for visitation, and ordered that Father have visitation with N.Y., with a paternal relative acting as a monitor. However, the juvenile court observed that due to the COVID-19 pandemic, it was unlikely in-person visits were permitted at the prison. The juvenile court set a contested disposition hearing.
Father attended the December 1, 2020, contested disposition hearing. Father's counsel did not ask the juvenile court to award him custody of N.Y., but instead focused on requesting reunification. Counsel stated, "Father is requesting the opportunity to reunify with his children today.... [F]ather is non[]offending in the petition, the only thing working against him at this time is the fact that he is in custody. Father does have a release date of 2022, but I would ask the court to note that there is no case law that says that . . . family reunification is not allowed to someone in custody, especially when they are able to make an appropriate plan. Father can still make an appropriate plan now[,] today. He is asking that the minors [N.Y. and her half-sister, N.S.] be placed with his mother, the paternal grandmother .... [Father] has attempted to . . . enroll in [domestic violence and substance abuse] programs but he [has] been limited in being able to do that because of COVID[-19]." Counsel further argued that the reports that Father has never met N.Y. were not true. He held her, played with her, and fed her in April 2019 when paternal relatives brought her to visit him. He also had approximately four behind-glass visits with her in 2018.
Minors' counsel argued against reunification services for Father, observing that Father's 2018 sentence was for 15 years in prison, that N.Y. was very young, and she and Father lacked bonding as Father had been incarcerated for her entire life. DCFS agreed with minors' counsel's arguments, repeating that due to N.Y.'s age and Father's incarceration, bonding between the two had not been possible. DCFS further argued the crimes for which Father was incarcerated included robbery and possession of a firearm, an apparent suggestion (although it was not explicitly stated) that the court should bypass reunification services under section 361.5, subdivision (b)(12). DCFS objected to Father's contention that he had had visits with N.Y., noting there was no evidence before the court of that fact. Counsel observed that if Father were released before his 15-year sentence, he could file a section 388 petition. DCFS further argued that placing N.Y. with paternal relatives was not an appropriate plan because she was currently bonded with maternal grandmother, with whom N.Y.'s half-sister also resided, and there was no indication that N.Y. had a relationship with the paternal relatives.
The juvenile court found by clear and convincing evidence that there was a substantial danger to N.Y. if she were not removed from Mother and Father. The juvenile court thereafter described that reasonable services to reunify Father and N.Y. would be detrimental to N.Y. because "the child would not be reunified with [F]ather as the child never resided with or [has] been in the custody of [F]ather. Additionally, the court is considering the length of his sentence and the court will indicate that the evidence before the court is that he is in custody for a 15-year sentence. Even if the court were to view the facts in the light most favorable to [F]ather indicating that his release date is 2022 as he indicated, the court will note . . . that this child at the time she's being removed from the parents is under the age of [three]. Therefore, it is likely that only six months of reunification services will be offered even if they were extended. They would not be extended to a period of time after [F]ather's projected release date . . . and the court will indicate there is no evidence established that the child has a relationship with [F]ather. And for all of those reasons the court does find that it would be detrimental to offer reunification services." The court ordered two hours of monitored visitation twice a month for Father and that DCFS continue to provide Father with information relating to and photographs of N.Y.
The reporters' transcript does not reflect that the juvenile court orally advised Mother or Father of their appellate rights. On December 1, 2020, the clerk of the court mailed notice of entry of the minute order for the disposition hearing and "Appeal Rights form(s)" to Mother at an address listed and to Father, but with no address listed.
D. Six-month Status Review
In its six-month review report, DCFS stated N.Y. was "active[,] . . . healthy . . . [and] well-groomed." She was "doing exceptionally well" in maternal grandmother's home and was "always in good spirits." She received services through the Regional Center for speech development. DCFS further reported that it sent letters and photographs to Father every month, between August 2020 and March 2021. Even after the six-month review period, DCFS continued to send monthly letters to Father. Except for one instance in July 2022, Father did not respond to the letters. Maternal grandmother stated Father did not write to or call N.Y.
On June 2, 2021, the juvenile court held a six-month review hearing. Father's counsel requested that the hearing be continued so that Father could attend. The juvenile court denied the request, observing that Father did not have a statutory right to be present for that hearing. At Mother's request, the court set a contested section 366.21, subdivision (e) hearing.
E. Termination of Mother's Reunification Services
Father did not attend the section 366.21, subdivision (e) hearing held on June 30, 2021, and the juvenile court denied Father's counsel's request to continue the hearing to allow Father to be present. The juvenile court terminated reunification services for Mother, scheduled a section 366.26 hearing, and issued orders to facilitate Father's presence at that hearing. It also directed "[t]he clerk . . . to send written advisement to [M]other and . . . [F]ather at his place of incarceration that to preserve any right to review on appeal the court's order setting the hearing to select and implement a permanent plan under section 366.26, the parent must seek an extraordinary writ by filing a notice of intent to file a writ petition and request for record or other notice of intent to file a writ petition and request for record and a writ petition juvenile form or other petition for extraordinary writ."
A clerk's certificate of mailing dated June 30, 2021, indicates the clerk mailed "Appeal Rights, Notice of Intent to File Writ, Petition for Extraordinary Writ form(s)" to Mother at an address listed and to Father, but with no address listed.
F. The Juvenile Court Denies Father's Section 388 Petition and Terminates Parental Rights
On July 7, 2021, Father's counsel filed notification of a change in Father's mailing address. It indicated Father's address was now a P.O. box located at the Terminal Annex in Los Angeles.
On September 10, 2021, DCFS sent a copy of its section 366.26 report to Father by certified mail. It also sent a copy of a notice of the section 366.26 hearing to Father. Both documents were mailed to Father's prior address, at North Kern State Prison in Delano, and not his then-current mailing address at the Terminal Annex.
On October 28, 2021, the date originally set for the section 366.26 hearing, the juvenile court continued the hearing to February 25, 2022, observing that notice to Father had not been proper. During the hearing, Father's counsel stated that Father was at the Terminal Annex.
In a last minute information filed February 14, 2022, DCFS reported that on December 29, 2021, a social worker traveled to the North Kern State Prison, where Father remained incarcerated, to personally serve notice of the section 366.26 hearing upon Father. Due to COVID-19 restrictions, the social worker was not permitted to see Father, but left the documents with Father and later received the notice and proof of service signed by Father and dated January 4, 2022. DCFS also provided a printout of the California Department of Corrections and Rehabilitation website relating to inmate information for Father. The document stated that Father was housed in North Kern State Prison.
The juvenile court continued the section 366.26 hearing a few more times, until October 28, 2022.
On October 6, 2022, Father filed a request pursuant to section 388 to change court order. He stated that he had been released from prison and had completed parenting and domestic violence classes. He requested "full . . . or temporary custody" of N.Y. On October 10, 2022, the trial court denied Father's request without a hearing. The court checked boxes on the form order that it denied Father's request because it did not state new evidence or a change in circumstances and because "the proposed change of order . . . does not promote the best interest of the child."
Father attended the October 28, 2022, section 366.26 permanency planning hearing. He, through his counsel, requested that the court set the hearing for contest or continue it as Father sought to reunify with N.Y. He argued he had a total of five visits with his daughter since her birth and that both Mother and maternal grandmother could testify to those visits. He further argued he attempted to stay in contact with N.Y. during his incarceration by calling maternal grandmother or calling his own mother to have her contact maternal grandmother. Further, upon his release in September 2022, Father enrolled in parenting and anger management classes.
Minors' counsel and counsel for DCFS argued against continuing the hearing and that N.Y. did not know Father due to his incarceration and lack of contact with her. Father did not write letters to N.Y. or seek to have telephone visits while incarcerated. DCFS further argued the termination of parental rights would not be detrimental to N.Y. Rather, delaying permanence for N.Y., who was young and on the verge of permanency, would not be in her best interest.
The juvenile court observed that the section 366.26 hearing had been continued numerous times. It found no good cause to further continue the hearing and observed it did not agree with statements that Father's inability to visit with N.Y. was not in his control as the events that led to his incarceration were within his control. It found N.Y. to be adoptable and that it would be detrimental to her to be returned to Mother or Father. Finding no exception to adoption, the juvenile court terminated Mother's and Father's parental rights.
The clerk of the court then sent a notice of entry of the October 28, 2022 minute order and appeal rights, notice of intent to file writ, petition for extraordinary writ form to Mother and Father. The certificate of mailing did not list an address for either Mother or Father.
G. Father Files a Notice of Appeal
On November 28, 2022, Father's counsel filed a notice of appeal from "[a]ll orders of [October 28, 2022]." On the second page of the Judicial Council JV-800 form, Father's counsel checked the box indicating the appeal was for a section 366.26 order terminating parental rights. The notice of appeal did not reference the disposition hearing date or order, or the section 388 petition hearing date or order.
DISCUSSION
A. The Dispositional Order
1. Appellate Jurisdiction
The parties do not dispute that Father failed to timely appeal from the juvenile court's December 1, 2020 dispositional order. Father argues we should excuse his tardiness because the juvenile court did not advise him of his appellate rights as required under California Rules of Court, rule 5.590. Father further argues that although the notice of appeal lists only "[a]ll orders of [October 28, ]2022," the date that the juvenile court terminated his parental rights, we should construe his notice of appeal to include the December 1, 2020 dispositional order. We agree with both of Father's arguments.
a. Timeliness
California Rules of Court, rule 5.590 states, "[i]f at a contested hearing on an issue of fact or law the court finds that the child is described by . . . section 300 . . ., the court after making its disposition order . . . must advise, orally or in writing, . . . the parent or guardian of," inter alia "[t]he right of the . . . parent . . . to appeal from the court order ...." (Id., rule 5.590(a)(1).) "If the parent . . . is not present at the hearing, the advisement must be made by the clerk of the court by first-class mail to the last known address of the party ...." (Ibid.)
Generally, an appeal from a juvenile court order must be filed within 60 days after pronouncement of the order. (Cal. Rules of Court, rule 8.406(a)(1); see In re A.R. (2021) 11 Cal.5th 234, 246.) The deadline is jurisdictional, and once the deadline expires, the appellate court has no power to entertain the appeal. (See In re A.R., supra, at p. 246.) However, when the juvenile court fails to advise a parent of his or her appellate rights as required under rule 5.590 of the California Rules of Court, we may excuse the parent's failure to timely appeal dispositional orders. (See In re A.O. (2015) 242 Cal.App.4th 145, 148; see also In re A.R., supra, at p. 249.)
The juvenile court here did not orally advise Father of his right to appeal at the December 1, 2020 contested dispositional hearing, nor did Father's counsel waive a reading of appellate rights. The clerk of the court, however, did mail written notice of Father's appellate rights. DCFS argues that Father received proper notice because we should presume the court clerk suitably discharged its official duty in mailing Father information about his appellate rights in the absence of evidence to the contrary. (Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"]; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125 [Evid. Code, § 664's "presumption applies to the duties of clerks of court"].)
For such a presumption to apply, however, the clerk of the court must have complied with the applicable statutory requirements. (American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, 583.) Code of Civil Procedure section 1013a, subdivision 4 states, in relevant part, that "[i]n case of service by the clerk of a court of record," proof of service by mail may be made by "a certificate by that clerk setting forth the exact title of the document served and filed in the cause, showing the name of the clerk and the name of the court of which he or she is the clerk, . . . and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid...." (Code Civ. Proc., § 1013a, subd. (4), italics added.)
Here, the December 1, 2020 clerk's certificate of service lists Father's first and last name, but no address. Without such information, and in the absence of any evidence showing actual notice, we cannot conclude Father received the notice of his appellate rights. (American Contractors Indemnity Co. v. County of Orange, supra, 130 Cal.App.4th at p. 583.) Thus, special circumstances exist to excuse Father's untimely appellate challenge to the juvenile court's dispositional order. (See In re A.O., supra, 242 Cal.App.4th at p. 148.)
b. The Scope of the Notice of Appeal
Turning to the issue of Father's failure to specify the dispositional order in his notice of appeal, we observe such a failure is also jurisdictional and therefore ordinarily fatal. But it again matters here that Father was not advised of his appellate rights following the disposition hearing as required by law. "[B]ecause we find that there is good cause for [Father's] late appeal, if we dismissed [his] challenge to [the dispositional order] on th[e] ground [that the notice of appeal must specify each order being appealed], we would also grant [him] the opportunity to correct and re-file [his] notice document. In the interests of judicial economy, and because both parties have already fully briefed the issue of the validity of [the dispositional order], we reach the merits of the issue without further delay." (In re A.O., supra, 242 Cal.App.4th at p. 149.)
2. Father Forfeited His Argument that the Juvenile Court Erred in Not Applying Section 361.2
Having jurisdiction to review the dispositional order, however, does not mean we can immediately leap to considering Father's claim that the court erred in failing to consider potential placement under section 361.2 when making that order. "It is the noncustodial parent's request for custody that triggers application of section 361.2, subdivision (a); where the noncustodial parent makes no such request, the statute is not applicable. [Citation.] Failure to object to noncompliance with section 361.2 in the lower court results in forfeiture. [Citation.]" (In re A.A. (2012) 203 Cal.App.4th 597, 605-606.) The record shows, and Father does not dispute, that he failed to make a request for custody that would have triggered section 361.2.
Father seeks to excuse this forfeiture by arguing his trial counsel was ineffective in requesting that the juvenile court provide reunification services under section 361.5 instead of placement under section 361.2. "As a general rule, a parent who has not received competent representation in juvenile dependency proceedings is entitled to seek relief based on denial of the statutory right." (In re A.R., supra, 11 Cal.5th at p. 247; see § 317.5, subd. (a).) "Under the standard test for a claim of ineffective assistance of counsel, [F]ather is required to demonstrate both that counsel's representation fell below an objective standard of reasonableness and resulting prejudice. [Citation.] A violation of the right to effective counsel is reviewed under the test of harmless error. [Citation.] 'Thus the parent must demonstrate that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citation.]" (In re N.M. (2008) 161 Cal.App.4th 253, 270.)
DCFS argues Father forfeited his claim of ineffective assistance of counsel by not raising the issue in the juvenile court. But usually a "parent is hardly in a position to recognize, and independently protest, [his] attorney's failure to properly analyze the applicable law." (In re S.D. (2002) 99 Cal.App.4th 1068, 1080.) Thus, if counsel made an error in failing to argue section 361.2, nothing in the record indicates that Father should have known during the dependency proceedings that it was an error. In contrast, Father has forfeited his claim that his trial counsel provided ineffective assistance by failing to produce admissible evidence of Father's visits with N.Y. at the dispositional hearing. Father attended the dispositional hearing where DCFS argued there was no evidence to support the argument by Father's counsel of Father's visits, and unlike legal standards, this alleged deficiency was not beyond a lay person's understanding. (Cf., e.g., People v. Lopez (2019) 31 Cal.App.5th 55, 66 [a defendant arguing ineffective assistance is required to raise objection to counsel's factual argument conceding guilt on particular charge contemporaneously with the trial court].) Even if this claim was not forfeited, Father failed to" 'demonstrate that it is "reasonably probable that a result more favorable to [him] would have been reached in the absence of the error."' [Citation.]" (In re N.M., supra, 161 Cal.App.4th at p. 270.) Father's handful of visits with his daughter while he was in prison did not demonstrate a relationship or bond between the two.
Ineffective assistance of counsel claims in dependency actions are generally raised by way of a habeas corpus petition. (In re N.M., supra, 161 Cal.App.4th at p. 270; In re Paul W. (2007) 151 Cal.App.4th 37, 53.) That is because "establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record." (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) "Although a claim of ineffective assistance of counsel is usually raised by way of a writ of habeas corpus, it may be effectively raised as part of an appeal in the rare case where the appellate record demonstrates 'there simply could be no satisfactory explanation' for trial counsel's action or inaction. [Citation.]" (In re S.D., supra, 99 Cal.App.4th at p. 1077 [finding ineffective assistance on direct appeal where counsel failed to raise obvious legal argument that entirely defeated any possible dependency jurisdiction].)
We cannot conclude from the record before us-which contains for example no declaration from Father or his counsel below about their communications and the reasons for counsel's decisions-that there can be no satisfactory explanation whatsoever for trial counsel seeking reunification services instead of placement. For example, as DCFS notes in its brief, Father may have requested reunification instead of placement because a home-of-father order with a plan that N.Y. reside with paternal relatives likely would not afford those relatives financial assistance while N.Y. lived with them. Additionally, Father's robbery conviction required the juvenile court to bypass reunification services for Father unless it found by clear and convincing evidence that reunification was in N.Y.'s best interest. Bypass of reunification services permits the juvenile court to fast track matters to permanency planning (§ 361.5, subd. (f)), meaning the case might potentially be over long before Father was released from prison. Given the unlikelihood that the juvenile court would move N.Y. from her stable placement with her half-sister and maternal grandmother and put her with paternal relatives who were not yet RFA approved, Father's counsel understandably might have focused on advocating for reunification services for Father to defer permanency planning.
<https://dcfs.lacounty.gov/caregivers/resource-family-financial-assistance/> [as of September 13, 2023].
Father's robbery conviction was a violent felony. (Pen. Code, § 667.5, subd. (c)(9) [defining "[a]ny robbery" as a violent felony].) Section 361.5, subdivisions (b)(12) and (c)(2) provide that a juvenile court "shall not" order reunification services" 'when the court finds, by clear and convincing evidence . . . [¶] . . . [¶] . . . the parent or guardian of the child has been convicted of a violent felony'" unless the court finds," 'by clear and convincing evidence . . . that reunification is in the best interest of the child.'" (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1189, 1190, quoting § 361.5, subds. (b)(12) & (c)(2).)
Although the juvenile court could not immediately engage in permanency planning unless services for Mother were also bypassed, neither Father nor his counsel had any control over Mother's actions and how those actions could influence the court to bypass services for her or provide her only six months of reunification services.
Because we cannot find ineffective assistance of counsel on the record before us, we cannot on direct appeal excuse Father's forfeiture of his argument that the juvenile court should have evaluated whether to place N.Y. with him under section 361.2. (See In re A.A., supra, 203 Cal.App.4th at pp. 605-606.)
3. The Juvenile Court Did Not Prejudicially Err in Failing to State the Basis for Its Decision to Remove N.Y. from Father
Father's final argument concerning the disposition order is that the juvenile court erred in failing to state its reasons for removing N.Y. from his custody as required under section 361, subdivision (e). We agree the juvenile court failed to properly state its reasons on the record but find that error harmless.
"Section 361, subdivision (d) permits removal from a parent with whom the child did not reside when the petition was filed only upon a finding by clear and convincing evidence of a current 'substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child,' were the parent 'to live with the child or otherwise exercise the . . . right to physical custody.'" (In re J.N. (2021) 62 Cal.App.5th 767, 777; see § 361, subd. (d).) The statute requires there be "no reasonable means by which the child's physical and emotional health can be protected without removing the child." (§ 361, subd. (d).) Further, the juvenile court must determine "whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home" and "shall state the facts on which the decision to remove the minor is based." (§ 361, subd. (e).)
In ordering removal from Father, the juvenile court did not describe the reasons for its order; it only described its reasons for denying reunification services. Nor did the court address whether placement with paternal aunt or paternal grandmother was an adequate plan for N.Y.'s care while he remained in prison. However, this error does not warrant reversal. The failure to make the required findings under section 361, subdivision (e) is deemed harmless if" 'it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.' [Citations.]" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218.) "Like other rulings of the trial court, when a juvenile court fails to make the factual findings required under section 361, subdivision (e), its removal order is subject to the constitutional mandate that no judgment shall be set aside 'unless, after an examination of the entire cause, including the evidence, the [appellate] court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13; [citation].)" (In re D.P. (2020) 44 Cal.App.5th 1058, 1068.) "[A] 'miscarriage of justice' will be declared only when the appellate court, after examining the entire case, is of the opinion that' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citation.] A' "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Ibid., italics omitted.)
Father argues that had the juvenile court stated facts in support of its finding it was reasonably probable it would have reached a different conclusion. Father observes he was nonoffending, made efforts to have N.Y. placed with his relatives, had visits with N.Y. prior to the dispositional hearing (and made efforts to have visits with her thereafter), showed an active interest in being part of each dependency hearing, and was eligible for parole in 2022.
We disagree it is probable that the juvenile court's dispositional order would have been any different if it had stated facts supporting its order on the record. First," '[t]here is no "Go to jail, lose your child" rule in California'" as long as the "incarcerated parent can make suitable arrangements for a child's care during his or her incarceration." (In re Isayah C. (2004) 118 Cal.App.4th 684, 696; see In re J.N., supra, 62 Cal.App.5th at pp. 776-777.) Here, Father sought to "otherwise exercise the . . . right to physical custody" (§ 361, subd. (d)) of N.Y. and identified paternal aunt and paternal grandmother as persons available to offer N.Y. a home during his incarceration. However, DCFS set forth evidence that these relatives were not suitable options as they each already had a child in their care and were not RFA approved for any others. Father did not present countervailing evidence that either paternal relative thereafter made any effort to secure the necessary approval.
Second, the length of Father's incarceration supported a finding of substantial harm to N.Y." '[V]ery young children . . . require a more timely resolution of a permanent plan because of their vulnerable stage of development.... [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical.'" (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 612.) Yet, at the time of the dispositional hearing, the evidence demonstrated that Father would remain incarcerated for at least another 22 months. Thus, to not have removed N.Y. from Father would have meant delaying permanency for her for at least 22 more months plus any time thereafter during which Father and N.Y. engaged in reunification services. However, the dependency statutes do not contemplate delaying permanency to such an extent, and especially not for children of N.Y.'s age. (See § 361.5, subd. (a)(1)(B) [limiting reunification services for children under the age of three to 12 months after the earlier of the date of the jurisdictional hearing or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent]; § 366.21, subd. (e)(3) [permitting the court to schedule a § 366.26 hearing within 120 days of the six-month review hearing for a child under the age of three if the parent failed to participate in and make substantive progress in a court-ordered treatment plan]; § 366.22, subd. (a)(1) [requiring the juvenile court to hold a permanency planning review hearing within 18 months of the child's initial removal from his or her parent]; In re Damian L. (2023) 90 Cal.App.5th 357, 371 [" 'if the court does not return the child at the 12-month review hearing and finds there is no substantial probability of return to the parent within 18 months of the initial removal from parental custody, "the court must terminate reunification efforts and set the matter for a hearing pursuant to [§] 366.26 for the selection and implementation of a permanent plan"' "].)
Third, Father lacked a relationship with N.Y. At the time of the dispositional hearing, N.Y. was nearly two years and nine months old, and Father had been incarcerated for the entirety of her life. Accepting Father's proffer that he may have had approximately five visits with N.Y. while he was in prison does not alter the conclusion that N.Y. lacked a relationship or bond with him. On the other hand, N.Y. had known and lived with maternal grandmother even prior to the initiation of the dependency proceedings. DCFS reported that N.Y. was "doing exceptionally well" in maternal grandmother's home, was "always in good spirits," that maternal grandmother ensured N.Y. participated in Regional Center speech services as needed, and that maternal grandmother also cared for N.Y.'s half-sister. Given N.Y.'s young age, there was a substantial likelihood that moving N.Y. from a stable and familiar environment to live with someone who was essentially a stranger to her would have been harmful to her emotional, if not physical, well-being.
The record discloses very little about the nature and quality of Father's visits with N.Y. except that in at least one instance, Father held her, fed her, and played with her. In other instances, however, the visits were "behind glass," and therefore offered a limited opportunity for a child of N.Y.'s age to bond with Father.
B. The Section 388 Petition
Father argues the juvenile court erred in denying his section 388 petition in which he sought resumption of reunification services for six months and custody of N.Y. DCFS argues that we lack jurisdiction because Father's notice of appeal does not identify the section 388 order or list the date of the hearing on that petition. Father acknowledges his notice of appeal lacks these specifics but argues we should liberally construe the notice to include them. There are cases supporting the arguments of both sides. (Compare In re J.F. (2019) 39 Cal.App.5th 70, 75 [no appellate jurisdiction] with In re Madison W. (2006) 141 Cal.App.4th 1447, 1450 [appellate jurisdiction].) While we do not condone the practice of only citing the termination order in the notice of appeal when there is also an order denying a section 388 petition made close in time from which a parent also wishes to appeal, pragmatism dictates that instances, however, the visits were "behind glass," and therefore offered a limited opportunity for a child of N.Y.'s age to bond with Father. we liberally construe the notice of appeal here (which was otherwise timely) to encompass the denial of the section 388 petition, particularly given the lack of prejudice to DCFS. (In re Madison W., supra, at pp. 1450-1451.)
"Section 388 allows a parent to petition to change, modify, or set aside any previous juvenile court order. (§ 388, subd. (a).) 'The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.' [Citation.]" (In re J.M. (2020) 50 Cal.App.5th 833, 845, italics omitted.) "We normally review the grant or denial of a section 388 petition for an abuse of discretion." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) "A court exceeds the limits of legal discretion if its determination is arbitrary, capricious or patently absurd. The appropriate test is whether the court exceeded the bounds of reason." (In re L.W. (2019) 32 Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Because the best interest prong is dispositive here, we address only that issue. Father argues providing reunification services and custody of N.Y. to him would have furthered N.Y's best interests as he was her natural, nonoffending Father and he demonstrated care for her throughout the proceedings. Although there is some incidental benefit to a child having a relationship with her natural parent, that is insufficient to outweigh the child's interest in permanence and stability or to establish that being with her natural parent is in her best interests. (See, e.g., In re Katherine J. (2022) 75 Cal.App.5th 303, 318; see also In re Mary G. (2007) 151 Cal.App.4th 184, 204 [describing that after reunification services are terminated and the § 366.26 hearing set, a child's need for stability and permanency takes precedence over a parent's interest in reunification].)
Although Father was no longer incarcerated and took parenting and domestic violence courses, he still lacked a bond with N.Y. Indeed, there was nothing in the record or his petition to indicate that during the two years following the dispositional orders or even during the weeks after he was released from prison, he began to form a relationship with N.Y. On the other hand, N.Y. had a loving, stable, and supportive home with maternal grandmother, with whom she had lived for over half of her life. At the six-month review, DCFS reported N.Y. was "doing exceptionally well" in maternal grandmother's care. Over a year later, N.Y. remained with maternal grandmother and her bond with maternal grandmother and her half-sibling continued to strengthen. DCFS reported N.Y. had "a very positive and loving bond" with maternal grandmother and observed N.Y. and N.S. playing together. Thus, Father did not demonstrate that further delaying permanency to permit him to engage in reunification services or to award him custody of N.Y. was in N.Y.'s best interest. The juvenile court did not abuse its discretion in denying Father's section 388 petition.
Father argues that if we reverse the juvenile court's order denying his section 388 petition, then we must also reverse the order terminating his parental rights. As we do not reverse as to the section 388 order, we do not address Father's conditional argument.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: CHANEY, J., BENDIX, Acting P.J.