Opinion
F063493 Super. Ct. No. 515837
12-20-2011
In re E.T., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. TRACY M., Defendant and Appellant.
Daniel G. Rooney, under appointment by the Court of Appeal, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Poochigian, J.
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Tracy M. (father) appealed from a September 2011 order terminating parental rights (Welf. & Inst. Code, § 366.26) to his daughter E. After reviewing the entire record, father's court-appointed appellate counsel informed this court he could find no arguable issues to raise on father's behalf. Counsel requested and this court granted leave for father to personally file a letter setting forth a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father has now submitted a letter in which he accuses his trial counsel of providing him ineffective assistance by not pursuing in a timely fashion E.'s placement with her paternal grandmother. Father's letter otherwise neither addresses the termination proceedings nor sets forth a good cause showing that any arguable issue of reversible error at the termination hearing does exist. (In re Phoenix H., supra, 47 Cal.4th at p. 844.) On review, we will dismiss father's appeal.
PROCEDURAL AND FACTUAL HISTORY
In August 2010, newborn E. was detained from her mother; both the child and mother had tested positive for marijuana. E. was the mother's third child to have a positive toxicology screen at birth.
At the time of E.'s birth, father was incarcerated out of state. He and E.'s mother were not married and he had not signed a declaration of paternity as to E. Consequently, he was considered E.'s alleged father. When a social worker with respondent Stanislaus County Community Services Agency (agency) made telephone contact with father in August, father said he would like to have E. placed with the maternal grandmother until he or the mother could reunify with E. He also stated he had a mother who lived out of state. He provided the agency social worker with the paternal grandmother's name and address.
The juvenile court ordered E. detained and later ordered father to undergo paternity testing. However, the court did not have the paternity test results when, in October 2010 at the dispositional hearing, it removed E. from parental custody, denied father reunification services, based on his alleged father status, and ordered six months of services and weekly visits with E. for the mother.
Meanwhile, the agency had hoped to place E. with the maternal grandmother and also mailed relative placement letters to several maternal relatives, but no relative placement had been made. The maternal grandmother needed an exemption, which she could not obtain. E. was instead placed with a foster parent with whom she remained throughout the remainder of these proceedings.
In December 2010, the juvenile court deemed father E.'s biological father based on the paternity test results. Father's attorney subsequently filed a section 388 petition asking the court to declare father E.'s presumed father and to order reunification services for him. In February 2011, the court denied the section 388 petition. Father appealed from the court's denial order, but did not prevail. (Stanislaus County Community Services Agency v. T.M. (July 14, 2011, F062249).)
In May 2011, father's attorney filed another section 388 petition. In it, father's attorney requested relative placement for E. Father's attorney appeared to question the agency's efforts to find a relative placement for the child. The agency reported the following details in opposing any change of placement for E.: "[In the fall of 2010] due to [father] being an alleged father and the reunification plan requiring weekly visitation with the mother, it would not be possible to place a child out of state and comply with the reunification plan. In addition our county policy is not to place or send applications for placement to alleged relatives."
This court takes no position on the propriety of such a policy.
--------
A former social worker on the case made contact with the paternal grandmother in November 2010 regarding a claim of Indian heritage father had made. The former social worker's log did not indicate the paternal grandmother reported interest in placement.
In February 2011, father's counsel inquired of the current agency social worker whether the agency had sent a relative assessment packet to the paternal grandmother. Due to some miscommunication, the social worker sent a relative assessment packet to the paternal grandmother in April 2011. The social worker received the paternal grandmother's application later that month.
The court summarily denied the second section 388 petition in mid-May 2011. Later that month, the juvenile court conducted the six-month review hearing, terminated the mother's reunification services, and set a section 366.26 hearing. Father, who was no longer in custody, appeared at the hearing and objected to the court's denial of his previous section 388 petition seeking presumed father status and reunification services. He did not claim his trial counsel was ineffective in her handling of the relative placement issue.
After the juvenile court set the section 366.26 hearing, father sought extraordinary writ relief (Cal. Rules of Court, rule 8.452) from the setting order. (Tracy M. v. Superior Court; F062567.) He again challenged the juvenile court's denial of his section 388 petition for presumed father status and reunification services. This court denied father writ relief, noting that our prior opinion in Stanislaus County Community Services Agency v. T.M.; F062249 amounted to law of the case.
In September 2011, the juvenile court conducted its section 366.26 hearing for E. By that time, the agency social worker had submitted a report to the court in which it recommended that the court find E. likely to be adopted and terminate parental rights. The report also disclosed that father visited E. twice, once in May 2011 and another time in June 2011. He had not scheduled another visit since.
At the section 366.26 hearing, father objected to the agency's recommendation that parental rights be terminated. He felt he and his family should have received a fair opportunity to obtain custody of E. Father also opined that E. would benefit by maintaining a relationship with him because he was her father.
Father further testified that he was released from custody in April of 2011 and, upon his release, he came to California. He then had two visits with E., but returned to his home state in July. He had to return to his home state where he had "some other family responsibilities."
Following closing arguments, the court found E. was likely to be adopted and terminated parental rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is up to an appellant to raise claims of reversible error or other defect and present argument and authority on each point made. If an appellant does not do so, the appeal should be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Here, father does not raise any claim of error or other defect against the termination order from which he appeals.
Instead, father claims his trial counsel was ineffective. According to father, his attorney misinformed the court as to his family's stability, by submitting a background check for E.'s maternal relatives, without pressing for background checks of the child's paternal relatives. Father's argument fails for several reasons, as discussed below.
First, his argument appears to be untimely. Relative placement and the agency's decision not to change E.'s placement arose before the court set the section 366.26 hearing. Yet, father never complained about his attorney's conduct, until now after his rights were terminated.
In addition, father fails to cite any supporting evidence for his ineffective assistance claim. Father also appears to assume that a background check of his relatives would have resulted in E. being placed most likely with the paternal grandmother. Yet, father overlooks the evidence before this court. Father originally supported E.'s placement with the maternal grandmother in that his mother lived out of state. Also, as the agency social worker reported, placement with an out-of-state relative would have conflicted with the court's reunification plan, which included weekly visitation, for the child's mother. Given that court-ordered reunification services were ongoing between October 2010 and May 2011, placement with the paternal grandmother was not possible during that time frame.
Furthermore, by May 2011 when the court terminated reunification services, there was no evidence that E. needed a new placement. She was in fact doing well in her foster care placement. Once a placement decision is made at the dispositional stage of juvenile court proceedings, consideration for a relative placement is given only "whenever a new placement of the child must be made." (§ 361.3, subd. (d).)
Finally, in order to prevail on a claim of ineffectiveness of counsel, father must show not only that counsel's representation fell below an objective standard of reasonableness, but that the inadequacy was prejudicial, that is, there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (People v. Diaz (1992) 3 Cal.4th 495, 557.) Father, however, fails to establish there was a reasonable probability that, assuming counsel was ineffective, the result of the proceeding would have been different, i.e., the court would not have terminated parental rights.
Thus, we conclude father has failed to make a good cause showing that an arguable issue of reversible error did exist. (In re Phoenix H., supra, 47 Cal.4th at p. 844.)
DISPOSITION
This appeal is dismissed.