Opinion
H043900
05-08-2017
In re BREANNA M., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 114 JD22681)
Appellant J.S. appeals from the juvenile court's orders denying his Welfare and Institutions Code section 388 petition and terminating his parental rights under section 366.26. He contends: (1) he was deprived of his due process right to notice of the dependency proceedings, and thus reversal is required; (2) the juvenile court erred in denying his request for an evidentiary hearing on his section 388 petition; and (3) he did not receive the effective assistance of counsel. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Appellant has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas petition by separate order.
I. Factual and Procedural Background
On July 7, 2014, the Department of Family and Children's Services (Department) filed a petition alleging that nine-year-old Breanna M. and her half sister, seven-year-old Andrea M., came within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Maria M. is the children's mother. The grounds alleged for jurisdiction included the mother's substance abuse, her pending criminal charges, and her failure to address issues identified in the concurrent dependency cases involving Breanna's three other half siblings. The petition alleged that S.G., who was the mother's stepfather, was the alleged father of Breanna and Andrea and his whereabouts were unknown. The petition did not identify appellant as an alleged father.
The juvenile court had sustained dependency petitions involving Breanna's three other half siblings in June 2014 and the mother was receiving family reunification services for them. None of Breanna's half siblings are involved in the present appeal.
On July 14, 2014, the juvenile court ordered that Breanna and Andrea be removed from the mother's custody. No finding was made as to paternity.
On July 31, 2014, the Department filed a first amended petition in which it added allegations regarding domestic violence in the mother's home. It also identified appellant, whose whereabouts were unknown, as Breanna's alleged father.
In September 2014, the jurisdiction/disposition report, which was dated August 1, 2014, was filed. The mother had informed the social worker that she believed appellant might be Breanna's father. The mother did not know where he resided or how to contact him. She stated that he was "around her age, 26." She also indicated that S.G. might be Breanna's father, but she did not think so. The children believed that J.V., the mother's former boyfriend, was their biological father. The social worker was notified by the Department of Child Support Services on July 29, 2014, that it had no paternity information as to Breanna. The social worker also stated that Breanna and Andrea had been placed together in a foster home, but ran away twice from the home within eight days of placement. They were then placed in another foster home.
On September 4, 2014, the juvenile court sustained the first amended petition and ordered reunification services for the mother. Paternity was not established.
The interim report, which was dated October 21, 2014, identified S.G. as the alleged father of both Breanna and Andrea and did not mention appellant. Both children were placed in a non-current foster home and were in therapy.
On December 11, 2014, the juvenile court ordered a court-appointed special advocate (CASA) for Breanna. The CASA subsequently reported that Breanna was functioning at third grade level and receiving therapy. The CASA also noted that Breanna and Andrea were "quite attached" to each other.
The six-month review report, which was dated February 20, 2015, referred to both S.G. and appellant as alleged fathers for Breanna. The social worker summarized the efforts to contact S.G., but did not mention any attempts to locate appellant. The social worker also noted that Breanna continued to perform below grade level, had "auditory, visual, and fluid reasoning processing deficits," was receiving special education services, and had been diagnosed with depressive disorder NOS. The social worker summarized the foster mother's concerns regarding the children's negative behaviors.
The six-month review hearing was held on March 4, 2015. The juvenile court ordered that the mother continue to receive reunification services.
The 12-month review report, which was dated August 7, 2015, recommended the termination of reunification services for the mother and the adoption of a permanent plan. The report referred to the mother's prior identification of appellant as a possible father of Breanna and stated that there had been no further information about the alleged fathers. The report also summarized Breanna's and Andrea's placements. They were in a foster home from August 2014 until March 2015. Due to licensing issues, the children were moved to another foster home. When it was discovered that the home was not a prospective concurrent home for them, they were moved to another foster home where they lived from April 3, 2015 until July 2, 2015. At that time, Breanna displayed "challenging behaviors," and the foster parent gave a seven-day notice to terminate the placement. The children were moved to yet another foster home.
On August 19, 2015, the juvenile court terminated the mother's reunification services and adopted a permanent plan of long-term foster care.
An interim review report, which was dated October 13, 2015, stated that Breanna and Andrea had been placed in a concurrent foster home on August 31, 2015. The children liked the foster family and understood that their current home was a long-term placement.
A status review report, which was filed on February 9, 2016, recommended that a section 366.26 hearing be set to consider adoption. The report by the CASA stated that Breanna had made a "remarkable transformation" and appeared to be "happy and well-adjusted" since she had been placed in a stable home. The CASA also stated that she was "thrilled to see a happy ending in the making for this little girl who ha[d] undergone a lot of loss and trauma in her life." The report listed search efforts to locate S.G., but none for appellant. Following a hearing on February 9, 2016, the juvenile court set the section 366.26 hearing for June 6, 2016.
On February 19, 2016, the social worker searched the state prison data base and discovered 38 possible matches for individuals with appellant's name and approximate age in the San Jose area. On March 10, 2016, the Department sent a letter to appellant in which it notified him that he had been identified as the father of a child born to the mother in June 2005, informed him of the proceedings, and provided him with the appropriate form regarding parentage. According to the report, appellant had been in state prison since October 2006. When no response was initially received from appellant, the Department obtained authorization to publish notice for appellant and two other possible alleged fathers for the section 366.26 hearing.
On April 7, 2016, the juvenile court appointed counsel for appellant. On April 28, 2016, the juvenile court ordered paternity testing for appellant. About a month later, testing confirmed that appellant was Breanna's biological father and that he was not Andrea's father.
The section 366.26 report, which was dated June 2, 2016, recommended that the parental rights of the mother and the alleged fathers be terminated and the children be freed for adoption. Breanna and Andrea had been placed in their current fost-adopt home on August 31, 2015, after multiple failed placements. They had developed a close relationship with their current foster parents, who had completed an adoption home study. Both of them expressed a desire to remain with them if they were unable to return to the mother's care. The social worker noted that the children seemed "to understand that this current placement [was] different than past placements and they have reported feeling a part of the family."
On June 6, 2016, the juvenile court found that appellant was the biological father of Breanna. On the same day, appellant filed a section 388 petition in which he requested that the jurisdiction/disposition orders be set aside due to a violation of his due process rights to notice and participation in the dependency proceedings. Appellant acknowledged that he could not engage in reunification services and reunify with Breanna, because his release date from prison was March 18, 2018. He argued, however, that the delay in providing notice prejudiced his right to preferential consideration of placement of Breanna with the paternal relatives.
On June 23, 2016, the juvenile court held a hearing on appellant's section 388 petition as well as the section 366.26 hearing. Following argument, the juvenile court denied the section 388 petition without holding an evidentiary hearing and terminated appellant's parental rights.
II. Discussion
Appellant contends that the juvenile court erred by denying his motion to vacate all orders obtained in violation of his due process rights and by failing to hold an evidentiary hearing on his section 388 petition.
A "biological father" is a father who has had his paternity established, but who does not qualify as a presumed father. (In re J.H. (2011) 198 Cal.App.4th 635, 644.) A biological father has very limited rights: he is not entitled to custody of the child and he may not receive reunification services unless the court determines such services will benefit the child. (§ 361.5, subd. (a); In re J.H., at p. 644.) A " 'man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an "alleged" father.' " (In re J.H., at p. 644, quoting In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) "Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, in accordance with procedures set out in section 316.2. [Citation.]" (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) The social services agency must use due diligence in attempting to locate an alleged father if his address is unknown. "Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 188.)
Here, the juvenile court found that the Department had failed to conduct a diligent investigation as to appellant's whereabouts and thus failed to provide him with notice of the dependency hearings prior to the section 366.26 hearing. The juvenile court also denied appellant's request for a continuance and an evidentiary hearing on his section 388 petition. The juvenile court stated: "I've thought about this quite a bit. You know, I just can't see that it's in the kids' best interest in this moment to just slow everything down or go in reverse. These kids have had nine months with their caretakers. They're very much bonded. They've indicated that's who they want to be with. It's a stable home. And while I do appreciate the family coming forward, at this point they still are strangers. They haven't been approved of as a home. It seems to me that it could move in the direction of splitting these two kids because one of them probably will not want to be a part of that family. [¶] I just think it is creating a lot of problems. And I realize that our path to this point in time has not been pure and straight, but I have to take it as I find it here, and as I find it here I really think these kids have to move on and be adopted. We're right at that doorstep, and I'm not going to stop it, so respectfully it's denied."
There is no dispute that the Department did not act in a diligent manner in attempting to locate appellant. In July 2014, the mother notified the social worker that appellant might be Breanna's father. However, after learning on July 29, 2014, that the Department of Child Support Services had no information about appellant, the Department made no effort to locate or notify appellant until February 2016 when it sought to terminate his parental rights.
Appellant contends that since he was deprived of his due process right to notice of the dependency proceedings, the jurisdiction order and all subsequent orders were void. The Department and Breanna contend that appellant has forfeited this remedy by seeking a continuance of the section 366.26 hearing.
Appellant's petition sought to set aside the jurisdiction and disposition orders. At the hearing, appellant's counsel acknowledged that appellant could not have received reunification services even if he had been located in a timely manner. The juvenile court asked why it should "undo everything, jurisdiction and disposition, if the only issue is not reunification, but simply bringing his family into the picture." Appellant's counsel clarified that the "only remedy" that she ever sought was consideration of placement with the paternal relatives and thus she was requesting a continuance of the section 366.26 hearing. Thus, the record establishes that appellant has forfeited his right to seek reversal of all orders on due process grounds.
We next consider whether the juvenile court erred when it denied appellant's request for a continuance. Section 352 provides that the juvenile court may continue any hearing, "provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) A juvenile court's ruling on a request for a continuance is reviewed under the abuse of discretion standard. (In re F.A. (2015) 241 Cal.App.4th 107, 117.)
Here, the juvenile court properly considered Breanna's best interests in denying the request for a continuance. After several failed placements, Breanna, who was 11 years old, was in an adoptive home and felt a part of the family with whom she had been living for nine months. Moreover, Breanna had never had any contact with appellant or the paternal relatives. Based on this record, the juvenile court did not abuse its discretion when it concluded that a continuance was not in Breanna's best interest.
Appellant also contends that the juvenile court erred when it denied his section 388 petition without holding an evidentiary hearing.
Section 388 authorizes a parent of a dependent child of the juvenile court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. (§ 388, subd. (a).) A party "seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]' [Citations.] There are two parts to the prima facie showing: The [party] must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) We review the summary denial of a section 388 petition under the abuse of discretion standard. (In re Anthony W., at p. 250.)
Though appellant made a prima facie showing of changed circumstances, he failed to show that the proposed change would promote the best interests of Breanna. As previously stated, appellant and the paternal relatives had never had any contact with Breanna and she was living with prospective adoptive parents with whom she had developed a strong bond. After several failed placements, Breanna needed stability. Accordingly, the juvenile court did not err when it denied the section 388 petition without a hearing.
Relying on In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), appellant contends that the juvenile court erred when it denied his petition based on Breanna's best interests. We disagree.
In Isabella G., the grandparents repeatedly sought placement of the child after she was placed in protective custody. However, their requests were ignored by the social services agency. (Isabella G., supra, 246 Cal.App.4th at pp. 711-712.) When reunification services were terminated, the grandparents filed a section 388 petition. (Isabella G., at p. 712.) The relative home assessment was then completed and their home was approved for placement in less than three weeks. (Ibid.) At the hearing on the petition, the juvenile court declined to proceed under the relative placement preference set forth in section 361.3 and applied the caregiver adoption preference under section 366.26, subdivision (k). (Isabella G., at p. 712.)
The appellate court in Isabella G. concluded that "when a relative requests placement of the child prior to the dispositional hearing, and the Agency does not timely complete a relative home assessment as required by law, the relative requesting placement is entitled to a hearing under section 361.3 without having to file a section 388 petition." (Isabella G., supra, 246 Cal.App.4th at p. 712.) The court noted that section 361.3 requires the juvenile court to evaluate several factors, including a child's best interests, and rejected the agency's argument that the application of the relative placement factors would not result in a more favorable outcome. (Isabella G., at p. 724.) The court relied on the following facts: the grandmother was the child's primary caregiver from birth until she was 23 months old; the child missed the grandmother and was happy to be with her; the current caretaker facilitated contact with the grandmother at the child's request, which sometimes occurred as often as three times a week; the child had her own bedroom at the grandparents' home; the current caretaker recommended that the child be placed with the grandmother; the child wanted to live with the current caretaker or the grandmother; the current caretaker did not believe that the child would suffer any harm if returned to the grandmother's care; and the grandparents' home had been approved for placement. (Ibid.) Thus, the court concluded that "[f]ocusing on the history and quality of [the child's] relationship with Grandmother instead of on the quality of [the child's] relationship with her caregiver may lead to a different outcome on remand." (Ibid.)
Unlike in Isabella G., here, the paternal relatives did not file a motion seeking relative placement. However, even assuming that the juvenile court was required to consider the criteria in section 361.3, any error was harmless.
Section 361.3 provides that when a child is removed from his or her parent's custody, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . ." (§ 361.3, subd. (a).) This statute also provides, in relevant part, that the juvenile court shall consider: "(1) The best interest of the child, including . . . psychological . . . or emotional needs. [¶] (2) The wishes of the parent, the relative, and the child, if appropriate. [¶] . . . [¶] (4) Placement of sibling and half siblings in the same home . . . . [¶] (5) The good moral character of the relative and any other adult living in the home . . . . [¶] (6) The nature and duration of the relationship between the child and the relative . . . . [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] . . . [¶] (F) Facilitate visitation with the child's other relatives. [¶] . . . [¶] (H) Provide legal permanence for the child . . . . [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. . . ." (§ 361.3, subd. (a).)
We refer to the version of section 361.3 in effect at the time of the hearing.
Here, it was not in Breanna's best interest to change her placement. After many struggles, she had made a "remarkable transformation" and was "happy and well-adjusted" in her current placement. Breanna wished to live with her foster parents if she could not live with the mother. She did not want to be separated from Andrea. Most importantly, unlike the grandmother's close relationship to the child in Isabella G., Breanna had no relationship with appellant or the paternal relatives. Here, the juvenile court considered these factors in denying appellant's petition. Thus, even assuming that the paternal relatives satisfied the remaining criteria under section 361.3, it is not reasonably probable that there would be a different outcome if the case was remanded for another hearing. (Isabella G., supra, 246 Cal.App.4th at p. 724.)
Appellant next contends that his counsel rendered ineffective assistance.
A parent who is represented by counsel at a dependency proceeding has a right to competent counsel. (§ 317.5, subd. (a).) This statutory right to counsel includes "the right to seek review of claims of incompetence of counsel." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1662.) In order to establish incompetence of counsel, a parent must show that "counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law" and must also "establish that the claimed error was prejudicial." (Id. at pp. 1667-1668.) The test for prejudice is whether it is " 'reasonably probable' " that a more favorable result would have occurred in the absence of counsel's alleged failings. (Id. at p. 1668.)
Appellant argues that his counsel's decision to pursue a remedy by means of a section 388 petition placed an unnecessary burden on him to prove that the requested relief was in Breanna's best interest. He further contends that counsel could have had no tactical reason for failing to maintain that he was entitled to having all orders vacated.
We need not examine whether counsel's performance was deficient, because appellant has failed to show prejudice. Appellant was initially an alleged father, who was not given notice and an opportunity to change his paternity status to a biological father earlier in the dependency proceedings. However, section 361.5 sets forth the statutory grounds to bypass a parent for reunification services. Two of these criteria would have applied to appellant's circumstances in 2014 and would still have applied in 2016 if the juvenile court had set aside the previous orders and returned the case to disposition: section 361.5, subsection (b)(12) - conviction of a violent felony; and section 361.5, subsection (e)(1) - length of incarceration. Appellant had been incarcerated since October 2006 and would not be released from prison until 2018. Thus, even if appellant had been able to establish that he was a biological father at an earlier date, he was ineligible for reunification services at all times during the dependency proceedings.
The Department requests that this court take judicial notice of the abstract of judgment, filed October 31, 2006, in appellant's criminal case. (Evid. Code, § 452, subd. (d).) Appellant argues that this document is irrelevant and was not before the juvenile court. However, appellant has claimed ineffective assistance of counsel and thus we take judicial notice of this court record. We also note that the juvenile court was aware of appellant's criminal case.
The cases upon which appellant relies are distinguishable. These cases involved a mother (In re DeJohn B. (2000) 84 Cal.App.4th 100) and presumed fathers (In re Megan P. (2002) 102 Cal.App.4th 480; In re Arlyne A. (2000) 85 Cal.App.4th 591), who, unlike appellant, were entitled to reunification services under section 361.5.
Appellant also argues that had he received notice, he could have supported the placement of Breanna with the paternal grandmother and the paternal aunt, which would have been a preferred placement under section 361.3. As previously discussed, if the juvenile court had ordered that the prior orders were void, it is not reasonably probable that it would have found the relative placement preference applicable in the present case.
In sum, even if counsel had not brought a section 388 petition or argued that all orders should have been vacated, the result would not have been more favorable to appellant.
III. Disposition
The orders are affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.