Gregory O. v. Super. Ct.

Filed 7/14/06 Gregory O. v. Super. Ct. CA4/1

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COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Cynthia Bashant, Judge. Petition denied.

Gregory O., Jr., (the father) seeks writ review of juvenile court orders terminating reunification services regarding his three children and referring the matter to a Welfare and Institutions Code section 366.26 hearing.^[1] He contends his counsel was ineffective because counsel did not advise him early in the proceedings that he should provide alternate care for his children to avoid the involvement of the San Diego County Health and Human Services Agency (the Agency). We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On March 24, 2005, the Agency petitioned on behalf of 11-year-old Gregory O. III (Gregory), seven-year-old G.O. and five-year-old Jonathan O. under section 300, subdivision (b), alleging their mother had not complied with her voluntary services agreement and had not provided adequate food or a safe and sanitary home for them. It also petitioned under section 300, subdivision (g), alleging the mother's whereabouts were unknown, the father was incarcerated and neither parent was able to arrange appropriate care for the children.

At the detention hearing, the court appointed counsel for the father, who was incarcerated at Ironwood State Prison, and detained the children. They were placed with their paternal great aunt (the great aunt).

The father was not present at the jurisdictional/dispositional hearing on April 20, 2005, but was represented by counsel. The father's counsel said he had prepared an order to produce the father for the hearing, but the father decided not to appear because if he did so he would lose time and other prison credits and he needed to get home. Counsel indicated the father believed the children should be placed with either the great aunt or the paternal grandmother, who both were present in the courtroom. The mother was present with counsel. She submitted to the petitions on the basis of the social worker's reports. The court found the allegations of the petitions true and declared the children dependents placed in relative care.

The Agency provided the father with notice of the six-month review hearing to be held on October 18, 2005. The father did not attend the hearing, but was represented by counsel. The court continued the children in relative care.

In the report for the 12-month hearing, the social worker reported the mother had not participated in her reunification plan. Gregory had been moved to a foster home because he was having conflicts with his siblings and the great aunt was no longer willing to provide care for him. The notice of the hearing sent to the father indicated the Agency was recommending the court terminate services and set a section 366.26 hearing.

At the 12-month hearing on April 17, 2006, the father was not present, but was represented by counsel. The court gave the father's counsel 30 days to set a special hearing for the court to hear any issues the father wished to raise. It terminated reunification services, set the matter for a section 366.26 hearing and continued the children in their placements.

The father petitions for review of the court's orders. (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1.) This court issued an order to show cause, the Agency responded and the parties waived oral argument.

DISCUSSION

The father contends his counsel was ineffective because he did not advise him to arrange for care for his children to avoid them becoming dependent children. The Agency argues the petition should be dismissed because it may not have been timely filed, it does not properly cite to the record and it cites to matters outside the record. We deem the petition timely filed and decline to dismiss it on the basis the Agency urges.

However, in considering the merits of the father's petition, we hold he has not shown ineffective assistance of counsel. Section 317.5, subdivision (a), provides "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." In order to establish that his counsel in a dependency proceedings was ineffective a parent " 'must demonstrate both that (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.]" (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

The father's claims do not establish that his counsel was deficient. The court established jurisdiction under section 300, subdivision (b) because the mother had not provided for the children's needs and did not comply with a voluntary services agreement. It also sustained the petitions under section 300, subdivision (g) because her whereabouts were unknown and the father was incarcerated and unable to arrange appropriate care. The father's reliance on In re S.D. (2002) 99 Cal.App.4th 1068 is unfounded. In In re S.D., the child became a dependent of the court under section 300, subdivision (g) because the parent had been arrested and incarcerated and neither parent was able to provide care. The reviewing court held the juvenile court assumed jurisdiction in error because there was no showing the parents could not arrange care. (In re S.D., supra, at pp. 1070-1071, 1077-1078.) Here, in contrast to In re S.D., even had the allegation under section 300, subdivision (g) been dismissed, the court could have taken jurisdiction under section 300, subdivision (b) based on the mother's failure to provide for the children. In In re Aaron S. (1991) 228 Cal.App.3d 202, on which the father also relies, the court ruled the incarcerated father should be allowed to present evidence that he would be able to arrange care for the child, but it did not disturb findings concerning the mother. (Id. at pp. 207-212.) Similarly, here, findings concerning the father's ability to arrange care would not have affected the findings under section 300, subdivision (b) related to the mother failure to provide for the children.

Further, at the jurisdictional/dispositional hearing, the father's counsel conveyed to the court the father's wish that the children be placed with a paternal relative. The court ordered relative placement and the children were placed with the great aunt. She, however, indicated she preferred to care for them under a foster care arrangement because she believed better funding would be available under such a plan. Because a relative whom the father chose as the children's caretaker wanted to care for them under a foster care arrangement, the father has not shown how different advice from his attorney could have led to a different outcome at the hearing.

The father has not shown his counsel provided ineffective assistance.

DISPOSITION

The petition is denied.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

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^[1] All statutory references are to the Welfare and Institutions Code.