Opinion
H042955
02-09-2017
In re J.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.G., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD22971)
Appellant R.G. appeals from an order returning her child, J.G. to her care pursuant to Welfare and Institutions Code section 366.26. On appeal, appellant's counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.). After appellant made a showing of good cause, we allowed her to file a supplemental brief. In her brief, appellant fails to raise arguable issues on appeal, therefore, we will dismiss the appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Because this court's opinion in this case, in a previous appeal (In re J.G.; DFCS v. R.G. (Apr. 11, 2016, H041974) [nonpub. opn.]), lays out the case and facts through the dispositional hearing, we need not address the facts underlying the dependency here. --------
On May 20, 2015, the juvenile court held a contested six-month review hearing in this matter. At that time the Department of Family and Children's Services (Department) recommended that family reunification services continue because the social worker thought it would be detrimental to return the child to appellant. The Department also expressed concern that child's Individualized Education Plan was not current because appellant and the Office of Education did not agree about the results of an assessment that was done. In contrast, the social worker reported that visitation was going well, and that the relationship between the child and appellant had improved. The child had asked for overnight visits with appellant that were going well, and the child had asked to be returned to live with appellant in San Francisco.
After the contested six-month review hearing on July 6, 2015, the juvenile court found that J.G.'s return to appellant did not create a substantial risk of detriment, and, thereafter, ordered the child returned to appellant. The court ordered county counsel to prepare "an order after hearing for family maintenance." The court signed and filed an order on August 4, 2015, and served it on counsel and the social worker, but not on appellant. Appellant filed a timely notice of appeal on October 1, 2015.
On appeal, we appointed counsel to represent appellant. Appointed counsel filed a brief pursuant to Phoenix H., supra, 47 Cal.4th 835, stating the case and facts, but raising no arguable issues on appeal. Pursuant to Phoenix H. this court notified appellant of her right to submit a request showing good cause to file a supplemental brief. On May 10, 2016, appellant sought permission to file a supplemental brief, and on May 17, 2016, we granted her request. (Phoenix H., supra, 47 Cal.4th at pp. 844-845.) On August 2, 2016 appellant filed a supplemental brief. We now address her contentions.
DISCUSSION
In her supplemental brief, appellant contends that the written order does not comport with the oral pronouncements at the hearing, that although she prevailed in the contested sixth month review hearing, she received ineffective assistance of trial counsel, and that she has not received adequate family maintenance services. Appellant's claims do not raise arguable appellate issues.
Despite appellant's contention to the contrary, the written order signed and filed on August 2, 2016 is consistent with the oral pronouncements made by the court at the July 6, 2015 hearing. At the hearing, the trial court made a specific finding that that J.G.'s return to appellant did not create a substantial risk of detriment, but directed county counsel to prepare "an order after hearing for family maintenance." The court left the details of family maintenance plan to the written order, anticipating that county counsel would address the necessary elements. The court then signed an order that detailed a family maintenance plan. Nothing in that order is inconsistent with the court's oral pronouncement. Appellant also complains that she did not receive a copy of the order. While the trial court should have served a copy of the order on appellant, she was able to file her notice of appeal in a timely manner, and has failed to articulate any prejudice that she suffered from this error.
She next argues that trial counsel was ineffective for not filing a request to transfer the matter to San Francisco County. In order to show ineffective assistance of counsel, appellant must show that counsel's performance was deficient, falling below an objective standard of reasonableness, and that appellant was prejudiced thereby. (Strickland v. Washington, 466 U.S. 668, 688, 694.) The trial court discussed the possibility of the matter being transferred to San Francisco, should the child ultimately move to San Francisco with appellant. The court observed that any party could file a "388 for a transfer-out," and told appellant's counsel that she was free to file such a request, if appropriate. On the record before us, we cannot determine whether such a request ever became necessary. The record of proceedings after the order on appeal and appellant's own brief, demonstrate that the child was again removed from appellant's care by October 2016. Therefore, a request for transfer would not have been appropriate and the failure to make the request cannot support a claim for ineffective assistance of counsel.
Finally, appellant contends that, in part because of the failure to transfer the case to San Francisco, she did not receive sufficient family services. If Appellant feels that she received insufficient services pursuant to the family maintenance order, she needs to seek redress in the juvenile court. Compliance with the order that is the subject of this appeal, or lack thereof, is not a cognizable argument on appeal.
Appellant, having failed to raise any arguable issue on appeal from the order returning the child to her care and setting a family maintenance plan, the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.