Opinion
No. H025910.
7-17-2003
TRACY J., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent, SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Real Party in Interest.
Tracy J., the mother of the child Gabriel M., files this petition for extraordinary writ challenging the findings and orders of the juvenile court in setting a hearing pursuant to Welfare and Institutions Code section 366.26. (§ 366.26, subd. (l); Cal. Rules of Court, rule 39.1B.) Mother argues that the juvenile court erred by setting a section 366.26 hearing at a post-permanent plan hearing after the childs legal guardian, Wendy K., filed a section 388 petition seeking to modify the childs permanent plan in light of the guardians desire to adopt the child. Mother also challenges the juvenile courts denial of her section 388 petition seeking reunification and visitation with the child. Since we find no error or abuse of discretion by the juvenile court in setting the section 366.26 hearing, we will deny the petition. We also find that mothers challenge to the juvenile courts denial of her section 388 petition is not the proper subject of this rule 39.1B writ petition since the contested hearing on mothers section 388 petition took place days after the juvenile court issued its order setting the section 366.26 hearing.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS AND PROCEDURAL HISTORY
In April 1994, the child Gabriel M. (born July 1993) and his older sisters Gabrielle M. (born August 1989), and Tina M. (born August 1990) were placed into protective custody after their father sexually molested their half-sister Giovanna G. (born August 1983). The Santa Clara County Department of Family and Childrens Services (the Department) filed section 300 petitions as to all four children, and they were declared dependents of the court in June 1994. The juvenile court ordered the children placed in mothers care under a family maintenance service plan.
In May 1995, all four children were placed in protective custody after the social worker found that mother had left Gabriel in the care of his half-brother Ricky in violation of prior court orders, and the Department filed supplemental section 387 petitions seeking to place the children in foster care. In August 1995, the juvenile court sustained the section 387 petitions but ordered the children returned to mothers care under a family maintenance service plan.
In January 1996, the four children were removed from mothers care again after the Department filed new supplemental section 387 petitions, and in July 1996, Gabriel was placed in the home of Wayne and Wendy K. (the "Ks"), where his sisters Gabrielle and Tina were already placed. The juvenile court ultimately sustained the section 387 petitions after a series of hearings, and, in March 1997, the juvenile court denied reunification services for mother due to mothers mental disability and set a section 366.26 hearing.
Mother filed a rule 39.1B writ petition challenging the March 1997 order setting the section 366.26 hearing (this courts case No. H016634), and this court denied the writ petition in an unpublished opinion filed on June 16, 1997.6
In July 1997, at the section 366.26 hearing, the juvenile court placed Gabriel and his two sisters Gabrielle and Tina in a permanent plan of long-term foster care with the Ks. In May 1998, the Ks became the legal guardians of all three children after another section 366.26 hearing. The Ks hesitated to adopt the three children because they were unsure whether they could meet Gabriels long-term needs due to his severe behavioral problems. The Department also sought to terminate mothers visitation with the three children because of its detrimental impact on them, and, after a contested hearing, mothers visitation was limited to once every six months.
In April 1999, the juvenile court terminated mothers visitation with the three children because the visits were detrimental to the children. In the meantime, the Ks decided to proceed with the adoptions of Gabrielle and Tina while maintaining legal guardianship of Gabriel. In October 1999, at a post-permanency planning review hearing, the juvenile court dismissed Gabriels dependency action with the Ks remaining as his legal guardians.
The juvenile court terminated mothers parental rights and ordered a permanent plan of adoption for Gabrielle and Tina. Mother appealed the order (this courts case No. H020680), and this court affirmed the order in an unpublished opinion filed on June 9, 2000. The Ks completed the adoption of Gabrielle and Tina in 2001.
In August 2000, mother submitted a section 388 petition seeking to terminate the Ks guardianship over Gabriel and asking for full custody. The juvenile court denied the section 388 petition without hearing in September 2000 on the ground that the petition did not state sufficient changed circumstances and did not appear to be in the childs best interest.
In October 2002, mother submitted another section 388 petition seeking to regain custody over Gabriel, and, on November 5, 2002, the juvenile court set the matter for hearing. Gabriels adult half-brother, Anthony G., also submitted a section 388 petition to the juvenile court seeking visitation with Gabriel, and the juvenile court set the matter for hearing on the same date as mothers section 388 petition.
In a report prepared in January 2003, the social worker recommended denial of both section 388 petitions. The social worker also reported that the Ks were committed to raising Gabriel and were planning to adopt him and that Gabriel was firmly attached to his guardians and wanted to be adopted. In March 2003, the juvenile court set both section 388 petitions for a contested hearing on April 28-29, 2003.
In early April 2003, the childs legal guardian, Wendy K., filed a section 388 petition seeking reinstatement of the dependency and requesting that the juvenile court set a section 366.26 hearing in order to change the childs permanent plan from guardianship to adoption since Gabriel had asked to be adopted by the legal guardians and since the legal guardians and his siblings wanted the adoption. The juvenile court also set the legal guardians section 388 petition for hearing on April 28, 2003.
On April 28, 2003, the juvenile court commenced a hearing on all three section 388 petitions. Initially, the juvenile court indicated that it would hear evidence on all three section 388 petitions at the same time for purposes of judicial economy.
The juvenile court first proceeded to consider the legal guardians section 388 petition and the issue of whether to set a new section 366.26 hearing. Counsel for mother indicated that mother was opposed to adoption, but counsel did not think there was a problem with setting a section 366.26 hearing. The juvenile court noted that everyone was in agreement that the court should set a section 366.26 hearing and that there was no opposition to setting such a hearing. After discussing procedural issues, the juvenile court determined that it was acting pursuant to section 366.3, subdivision (c) and was vacating the previous order dismissing the dependency and was setting a section 366.26 hearing. The juvenile court then set a contested section 366.26 hearing for August 4, 2003. As noted by the juvenile court, "So what the court has done is granted the guardian[]s 388 in part. That is I have reopened dependency and set a new 366.26 hearing."
After setting the new section 366.26 hearing on April 28, the juvenile court proceeded to the contested hearing on the section 388 petitions filed by mother and the childs half-sibling Anthony. The juvenile court conducted the contested hearing on mothers and Anthonys section 388 petitions on April 28, 29, and 30, 2003, during which the juvenile court heard testimony from the social worker, mother, and the childs legal guardian, Wendy K. On April 30, 2003, the juvenile court denied both section 388 petitions on the basis of a lack of changed circumstances and not being in the childs best interests. At the conclusion of the April 30 hearing, the juvenile court reminded mother of the previously set section 366.26 hearing date of August 4, 2003, and the juvenile court advised mother of her right to appeal the April 30, 2003 order denying her section 388 petition.
DISCUSSION
A. Order Setting the Section 366.26 Hearing:
Mother argues that trial counsel rendered ineffective assistance at the hearing that led to the setting of the section 366.26 hearing. Mother asserts that the contested trial was set specifically to argue the merits of her section 388 petition but instead resulted in the setting of a new section 366.26 hearing. Mother also maintains that she was never properly noticed of the hearing for the setting of the section 366.26 hearing. In response, the Department argues that the juvenile court was correct in setting a new section 366.26 hearing, as requested by Gabriels guardians, and that trial counsel had no basis for objecting to the setting of a new section 366.26 hearing in light of the provisions of section 366.3. By reply, mother asserts that trial counsel rendered ineffective assistance by failing to object to the setting of the section 366.26 hearing.
All parties who are represented at dependency proceedings are entitled to competent counsel. (§ 317.5, subd. (a).) A parent seeking review of a claimed violation of section 317.5 must show (1) that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law, and (2) that the claimed error was prejudicial. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) To establish prejudice, the parent must demonstrate that it is reasonably probable that a result more favorable to the parent would have been reached in the absence of the error. (Id. at p. 1668.) We utilize this standard in considering the claim of ineffective assistance of counsel.
Section 366.3, subdivision (c) provides in relevant part: "If, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption may be an appropriate plan for the child, the department shall so notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child."
Here, the legal guardian filed a section 388 petition advising the juvenile court and the Department of their desire to adopt Gabriel and requesting the setting of a new section 366.26 hearing, and the juvenile court set the matter for hearing on April 28, 2003. Contrary to mothers assertions, the record reflects that mother received notice on April 7, 2003, of the guardians section 388 petition and the scheduled hearing.
At the April 28 hearing, the Department indicated its agreement that the juvenile court should set a new section 366.26 hearing. Mothers counsel did not contest the setting of a new section 366.26 hearing. Essentially, all parties agreed that the juvenile court should set a new section 366.26 hearing. When the juvenile court set the new section 366.26 hearing, the juvenile court indicated that it was acting pursuant to section 366.3, subdivision (c) and was granting the legal guardians section 388 petition in part. We find that the juvenile courts order setting the section 366.26 hearing was proper under section 366.3, subdivision (c) in light of the information presented to the juvenile court at the April 28 hearing.
As for mothers claim that trial counsel should have objected to the setting of the section 366.26 hearing, mother fails to demonstrate that there was any legitimate basis for raising any objection or that such an objection would have had merit. To the contrary, it appears that any objection to the setting of a new section 366.26 hearing would have been futile in light of the provisions of section 366.3, subdivision (c) and in light of the legal guardians expressed desire to adopt Gabriel and his longstanding, stable placement in their home since 1996. As a result, we reject mothers challenges to the juvenile courts April 28, 2003 order setting the new section 366.26 hearing.
B. Denial of Mothers Section 388 Petition:
Mother also asserts that trial counsel rendered ineffective assistance throughout the course of the April 28-30 hearing on her section 388 petition because counsel purportedly failed to raise various objections and failed to present certain evidence. In opposition, the Department argues that the juvenile court properly denied mothers section 388 petition since she failed to demonstrate a change of circumstances and failed to demonstrate that the requested modification would be in Gabriels best interests. However, we find that mothers challenge to the denial of her section 388 petition and her claims of ineffective assistance of counsel at that hearing are not properly raised in this rule 39.1B writ proceeding because the juvenile courts order setting the section 366.26 hearing and its subsequent order denying mothers section 388 petition were entirely separate matters that took place on separate days.
As set forth in California Rules of Court, rule 39.1B(b), "this rule applies to all petitions for extraordinary writ challenging the findings and orders . . . by a juvenile court in setting a hearing under section 366.26." The procedures set forth in rule 39.1B are triggered on the date of the order setting the section 366.26 hearing. (See Cal. Rules of Court, rule 39.1B(c), (f).) The juvenile court stated on the record on April 28, 2003, that it was setting the new section 366.26 hearing for August 4, 2003. The juvenile court then proceeded to conduct the contested hearing on mothers section 388 petition over several days and ultimately denied mothers section 388 petition on April 30, 2003. Since the juvenile courts hearing and order on mothers section 388 petition post-dates its order setting the section 366.26 hearing, the juvenile courts denial of mothers section 388 petition cannot be considered the type of findings and orders to which rule 39.1B applies. As a result, we do not reach the merits of mothers challenge to the denial of her section 388 petition in this writ proceeding.
At the conclusion of the April 30, 2003 hearing, the juvenile court advised mother of her right to appeal the juvenile courts order. Mother has since filed a notice of appeal, and her appeal of the juvenile courts April 30, 2003 order denying her section 388 petition is currently pending in this court (this courts case No. H026090).
DISPOSITION
The petition for extraordinary writ is denied.
WE CONCUR: Elia, Acting P.J., and Mihara, J.