In re Cody P.

Filed 4/11/07 In re Cody P. CA1/1

Reposted 4/12/07 to reflect correct docket number; originally posted as A114358

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Charles P., appellant, appeals the order finding that his son, Cody P., was likely to be adopted and that termination of parental rights would not be detrimental to the child. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cody P. was born in January 1999. Appellant is Codys father. Codys mother is deceased.

On August 27, 2005, a police officer was called when appellant was seen sleeping on a bench in front of a liquor store with his child present. At the time, appellant and Cody had been staying in a homeless shelter. Appellant stated that he was taking pain medication and appeared to be intoxicated. The officer contacted Child Protective Services (CPS). Cody was detained and placed in foster care.

Two days later, appellant went to the CPS office to speak with a social worker about his son. He appeared to be under the influence of his prescription pain medication and told the social worker that he had asked the police officer for help because he was having an adverse reaction to new medication and did not feel he could properly care for his child.

Cody was returned to appellant on September 1, 2005. In the weeks that followed, appellant contacted the CPS office a few times, requesting assistance in obtaining transportation and alternative housing. On September 23, 2005, Cody was detained again after appellant was placed in an acute psychiatric inpatient facility on a 5150 hold[1] due to his suicidal feelings.

On September 27, 2005, the Department of Social Services (Department) filed a dependency petition, alleging that appellant was unable to care for Cody because of his mental health condition and his problems with prescription medication.

A detention hearing was held on September 29, 2005. At the hearing, appellant indicated that Codys mother had Native American heritage. The court ordered Cody returned to appellants custody. Cody was re-detained later that same day after the workers at the shelter reported that appellant appeared to be under the influence of his medications such that he was unable to care for his son. Appellant was reported to be lethargicand his speech was slurred. Shortly thereafter, appellant and Cody were evicted from the homeless shelter because appellant refused to turn over his medications to staff and because he could not adequately supervise Cody.

The Department filed an amended petition on October 3, 2005, alleging that appellant was again unable to care for Cody due to his mental health condition and problem with prescription medication.

On October 4, 2005, the court ordered Cody detained based on a prima facie finding that he came within Welfare and Institutions Code[2] section 300, in that there existed a substantial danger to Codys physical or emotional health caused by appellants inability to parent, as a result of his ongoing mental health issues and use of pain medication.

At the jurisdictional hearing on November 9, 2005, appellant submitted to the petition on the basis of the social workers report. The court reviewed the jurisdiction report filed on October 21, 2005 along with an addendum pertaining to the Indian Child Welfare Act (ICWA) filed on November 8, 2005.

The jurisdiction report indicated that appellant exhibited bizarre and inappropriate behavior when he came to the CPS office to pick up Cody after the September 29, 2005 hearing. While waiting in the CPS lobby, he startled a female client by rubbing her arm. He stood over the social worker, hugged her against her will, and demanded her home phone and cell phone numbers. He also stated that he was a witch. When reunited with Cody, appellant hugged the boy too tightly and attempted several times to place a pair of adult sunglasses on him until the social worker told him to stop.

The report also revealed that appellant had not followed up with referrals for medical care, medication management, and mental health support. At one point he stated to the social worker that he had 13 personalities. At least one of his supervised visits with Cody did not go well, with appellant spending much of the time berating the social worker.

In its report, the Department recommended that appellant be evaluated to assess whether his mental condition rendered him incapable of utilizing and benefiting from 12 to 18 months of family reunification services. The addendum to the report indicated that Cody was eligible for enrollment with the Choctaw Nation of Oklahoma for purposes of ICWA.

The juvenile court determined the allegations in the petition to be true, finding that Cody came within section 300, subdivision (b), and ordered the matter to proceed to a disposition hearing. The court declined to transfer the case to Sonoma County, where appellant was presently living, and ordered the Department to prepare two psychological evaluations. The court also directed further notice under ICWA be given to the Choctaw Nation.

The disposition hearing was held on January 17, 2006. Dr. Albert Kastl, a clinical psychologist, testified. Kastl had interviewed appellant and had administered several psychological tests. Kastl concluded that appellants intelligence was of low average caliber and that he had a low tolerance for frustration. Kastl also opined that appellant was clinically depressed and suffered from a pain disorder, which impaired his ability to care for a young child. He concluded that appellant had a personality disorder and would not benefit from reunification services. He also indicated that he believed it unlikely that appellant would successfully complete a pain management program, were he to be offered one, because he did not have a successful history with programs and services that had been offered to him in the past.

Dr. Jacqueline Singer also testified. Appellant had indicated to her that he had a medical history of neck injuries as well as a brain tumor, and that he experiences pain, which he is unable to control with medication or other measures. She noted that he was not forthcoming with information concerning his medical history with respect to pain management and concluded that he would have difficulty participating in a pain management program. She opined that without having his pain under control, he would not be able to take advantage of the parenting services that the department could offer. She testified that appellants personality has paranoid features, meaning that he has difficulty trusting others, and has borderline features, meaning that he has a tendency to decompensate psychologically under stress. She concluded that he would have difficulty engaging in services and in being an adequate parent.

Appellant testified at the hearing. He believed that he would need to address his pain issues before he could address reunification issues. He stated that he had been under a doctors care for chronic pain management, which had been covered by MediCal. He had placed Cody voluntarily with CPS when he was in the hospital in August. While in the hospital, appellant reacted poorly to medication. Shortly thereafter, his MediCal and AFDC benefits ceased and he did not have any money to pay for prescriptions or to see his doctor. The social workers had referred him to a different doctor for pain management, but the doctor would not accept him as a patient. He stated that a delay in getting back on MediCal occurred when he mailed in his application and did not receive a response.

Appellant also testified that he was in pain when he met with Kastl and Singer, and that this affected his performance. The social worker had suggested that he go to the emergency room to obtain pain medication prior to the evaluations, but he refused because he thought doing so would label him as an addict. He believed that CPS had not addressed his pain management issue.

On February 1, 2006, the juvenile court found that Cody came within the provisions of section 300, subdivision (b), in that there would be a substantial danger to his physical health, safety, protection, or physical or emotional well-being were he to be returned home. Appellant was bypassed for reunification services pursuant to section 361.5, subdivision (b)(2). He was notified of his right to file a writ. A writ petition was never filed.

On May 18, 2006, appellant filed a section 388 petition requesting that the juvenile court reverse the order denying reunification services. With regard to changed circumstances, appellants counsel stated in the petition: [Appellant] has shown an ability on his own to engage in reunification services; visitation shows a profound father-son bond; termination of parental rights would be detrimental to the minor. The court denied the petition without a hearing, finding the request did not show how it [would] be in the best interest of the child.

A hearing under section 366.26 was held on June 1, 2006. The court found that termination of parental rights would not be detrimental to Cody, however, termination was not ordered at that time because an adoptive family had not yet been found. Further proceedings were continued to November 30, 2006. During the interim, this appeal was filed.

After the opening briefs were filed in this case, we granted judicial notice of the Departments report filed with the juvenile court on November 17, 2006, indicating that Cody is presently living with a family that wishes to adopt him. Appellants parental rights were terminated on November 30, 2006 and adoption was selected as Codys permanent plan.

DISCUSSION

I. Denial of Section 388 Petition

Appellant claims that the juvenile court erred in denying his section 388 petition without a hearing. We disagree.[3]

Appellants petition was accompanied by his attorneys declaration, which stated, on information and belief, that appellant had obtained housing, vocational assistance, and a monthly General Assistance grant of $359. The declaration also indicated that appellant had been attending NA/AA sessions and parenting classes, and that his visits with Cody were going well. The attorney declared that termination of parental rights would be detrimental to Cody, although he offered no direct evidence to that effect. As noted above, the court summarily denied the request on the basis that it failed to demonstrate how granting it would be beneficial to Cody.

Appellant was required to make a prima facie showing of a genuine change of circumstances or new evidence sufficient to justify a finding that providing him with reunification services would be in Codys best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1504; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The allegations of a section 388 petition must be liberally construed, but conclusory claims are insufficient to require a hearing. Specific descriptions of the evidence constituting changed circumstances is required. Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. (In re Anthony W., supra, at p. 250.)

Appellant claims that he made a prima facie showing of change of circumstances. In particular, he asserts that he sufficiently demonstrated that his mental health condition no longer rendered him unable to care for Cody and that he had eliminated his problems with prescription medication. We do not find the evidence offered by appellant in support of this assertion to be compelling.

The attorneys declaration included various exhibits documenting such matters as his attendance at four NA/AA meetings and some parenting classes, a statement of the amount of his General Assistance grant, and documentation of his requests for medical and vocational benefits. He offered no evidence regarding his mental condition apart from a pending appointment for a new psychological assessment. He also produced no evidence regarding his pain medication issues apart from indicating that he had seen his primary care physician and had attended the NA/AA meetings.

While appellant had begun taking some positive steps towards improving his life, the petition did not present even a prima facie case that the efforts to date had actually resulted in any relevant changes. For example, he did not present a declaration from his physician stating that his pain was being successfully managed. And while he had attended a few parenting and substance abuse classes, he did not present any certificates of completion.

Appellants case is thus not comparable with those that he relies on for support. For example, in In re Aljamie D. (2000) 84 Cal.App.4th 424, 432, the parent showed that she had completed numerous educational programs and parenting classes and had tested clean in random drug tests for over two years. Here, appellant did not offer evidence that he had successfully completed his parenting classes or made any progress regarding his pain medication issues.

In In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799, the Court of Appeal found changed circumstances where the parent had undertaken 18 months of individual therapy. Similarly, in In re Jeremy W. (1992) 3 Cal.App.4th 1407, 14151416, the parent continued individual therapy at her own expense, even after her reunification services were terminated, and had abstained from drug and alcohol use for a substantial period of time. In contrast, appellant offered no evidence that he had participated in any individual therapy and minimal evidence of substance abuse counseling.

Moreover, as the Department points out, the court was already aware that appellant was seeing his primary care physician and that he was in the process of obtaining vocational and health services. Thus, the petition offered little evidence of changed circumstances.

We also agree with the juvenile court that appellant failed to demonstrate that granting reunification services would be in Codys best interest. The accompanying declaration merely speculates that Codys psychologist would opine termination of parental rights would not be in the boys best interest.

Important factors in considering a childs best interests are: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

Each of these factors weighs against appellant. Per Kastls and Singers testimony, the problems caused by his mental health condition and use of pain medications were serious, rendering him at times unable to care for Cody. And this was not necessarily a new development, as it appeared he had a history of failing to provide Cody with adequate medical care and academic preparation.

While the bond between Cody and his father appeared strong, their roles were sometimes reversed, with Cody acting more like the parent in the relationship. Additionally, the social workers reported that Cody was bonded to his foster family and did not have difficulty separating from his father at the conclusion of their scheduled visits.

Finally, appellants problems were not ones that could be easily removed or ameliorated, and he offered little indication in his petition that they were being addressed in a meaningful way.

We also note that by the time appellant began attending NA/AA meetings (March 2006) Cody had already been in foster care for five months and the section 366.26 hearing was scheduled to occur in three months. It has been observed that [o]n the eve of a section 366.26 hearing, the childs interest in stability is the courts foremost concern, outweighing the parents interest in reunification. Thus, a section 388 petition seeking reinstatement (or, in this case, initiation) of reunification services must be directed at the best interest of the child. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 13481349.) In sum, we find no error.

II. Termination of Parental Rights

Appellant claims that the juvenile court erred in terminating parental rights because there was no substantial evidence to support the finding that Cody was adoptable. The Department argues that this claim is moot in light of the fact that an adoptive family has now been found. As the prospective adoption is not yet final, we decline to hold that this issue is moot. We review the lower courts decision under the substantial evidence standard of review. (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)

As a preliminary matter, we note that appellants parental rights were not actually terminated until after this appeal was filed. At the hearing from which this appeal is taken, the court found that termination would not be detrimental to Cody. The court did not terminate parental rights at that time because an adoptive family had not yet been found and because Cody fell into the category of a child difficult to place in that he was over seven years of age and had a diagnosed disability.

The court did, however, find clear and convincing evidence that Cody was likely to be adopted.  The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.] [Citation.] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.] (In re Asia L. (2003) 107 Cal.App.4th 498, 510, italics omitted.)

Substantial evidence supports the juvenile courts finding that Cody was likely to be adopted. While Cody was seven years old at the time of the ruling, he was physically healthy though he had some issues related to hearing loss and some dental problems, which were being treated. Though he was academically delayed, he had made progress in school and appeared to be adjusting to his foster home. Appellants trial counsel did not oppose the finding that Cody was adoptable, stating as far as the issue of adoptability is concerned we dont contest that. Obviously Cody is a wonderful young boy and probably is adoptable, so thats not an issue for today, and were happy that parental rights are not being terminated at this time. The fact that a prospective adoptive family has now been found supports our conclusion that the court below made the correct determination.

III. Ineffective Assistance of Counsel

Appellant contends that the juvenile courts decision should be reversed due to the ineffective assistance of his trial counsel. In particular, he faults his counsels failure to file a writ under California Rules of Court, rule 38.1B (now renumbered as rule 8.450) after the court found that the Department had made active efforts to prevent the break up of an Indian family under ICWA and set the section 366.26 hearing. He also faults counsels failure to raise the section 366.26, subdivision (c)(1)(A) exception to the termination of parental rights.

A. Failure to File a Writ

The Department argues that appellant has waived his right to seek appellate review of the disposition order via his claim for ineffective assistance of counsel (IAC)[4].

Dependency appeals are governed by section 395, which provides in relevant part: A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order after judgment; but no such order or judgment shall be stayed by the appeal, unless, pending the appeal, suitable provision is made for the maintenance, care, and custody of the person alleged or found to come within the provisions of Section 300, and unless the provision is approved by an order of the juvenile court. The appeal shall have precedence over all other cases in the court to which the appeal is taken. [] This statute makes the dispositional order in a dependency proceeding the appealable judgment. [Citation.] Therefore, all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a .26 hearing when the circumstances specified in section 366.26, subdivision (l), exist. [Citations.] A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 11491150.)

In Meranda P., the court held that the mothers claim of ineffective assistance of counsel at various stages in the dependency process had been waived for purposes of an appeal filed after a section 366.26 hearing. (See In re Meranda P., supra, 56 Cal.App.4th 1143, 11601166.) Meranda P. recognized that error unfavorable to a parents interests during the course of dependency may well prove irremediable [citation], yet applied the waiver rule anyway. . . . [I]t follows that resort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error is . . . not enough and that it is never enough, alone, to argue that counsel rendered ineffective assistance by not raising potentially reversible error on rule [8.450] writ review of a setting order. (In re Janee J. (1999) 74 Cal.App.4th 198, 209.)

While we believe appellants IAC claim is waived, even if it is properly before us this claim must fail. In presenting a claim of IAC, appellant has the burden of showing, first, that his counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. Second, he must show that the claimed error was prejudicial, in that it is reasonably probable that he would have obtained a more favorable result in the absence of the error. This test is essentially the same whether his claim is grounded on the statutory or constitutional right to effective assistance. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 16671668 [statutory claim under section 317.5]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 17101711 [constitutional due process claim].)

The fact that appellants trial attorney did not file a writ is not, in itself, evidence that his conduct fell below the standard of care. Counsel is not under a duty to file a meritless writ petition. (See, e.g., Sue E. v. Superior Court (1997) 54 Cal.App.4th 399, 404 [And, we remind counsel that where, as in this case, the record clearly shows the reunification services were sufficient and return of a child to the parents would be detrimental, counsel is not required to file a writ petition in providing adequate representation to a parent].)

While we have no direct evidence of the attorneys strategy, it does appear that he was hoping appellant would be able to demonstrate his parental fitness before an adoptive family was found and his parental rights were terminated. At the June 2006 hearing the attorney stated: We hope that this coming period will give [appellant] a chance to further his ability to prove that he should have reunification with his son.

We also believe appellant was not prejudiced as substantial evidence supports the trial courts active efforts determination. ICWA requires the court to find that  active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.  (Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 997.) Active efforts are essentially equivalent to reasonable efforts to provide or offer reunification services in a non-ICWA case and must likewise be tailored to the circumstances of the case. [Citation.] Moreover, it has been held that denial of services in an agency removal case is not inconsistent with the active efforts requirement if it is clear that past efforts have met with no success. (Id. at p. 998.)

Appellant contends that the active efforts standard required the Department to ensure that an adequate pain evaluation and treatment program had been instituted before requiring him to undergo psychological evaluations. Yet the evidence at the hearing demonstrated that appellant failed to take advantage of many of the treatment options that the Department offered to him. For example, appellant revoked a release that would have allowed the social workers to contact his primary care physician. He refused to sign ICWA-related forms. He declined to participate in substance abuse counseling because he did not self-identify as a drug addict. He also did not take advantage of many of the referrals to mental health support groups and similar services. There also was evidence sufficient to infer that appellant did in fact obtain pain medication from his primary care physician prior to his psychological evaluations.

In sum, the record shows that appellant refused to take advantage of many of the services offered to him, failed to cooperate with the social workers, and failed to provide relevant information to the Department. The record also shows that the services offered by the Department were appropriate and that he was receiving some treatment for pain prior to his psychological evaluations. Thus, it is not reasonably probable that appellant would have received a more favorable result had his trial counsel filed a writ.

B. Failure to Raise Section 366.26, subdivision (c)(1)(A), Exception

Appellant also contends his counsel was ineffective in failing to raise the parental relationship exception. This exception applies when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship such that termination would be detrimental to the child. ( 366.26, subd. (c)(1)(A).) Contrary to appellants argument, we believe this issue was raised at the June 1, 2006 hearing, albeit not explicitly.

At the initial section 366.26 hearing, appellants trial counsel stressed that the Departments visitation notes showed an extreme bond between appellant and Cody, and that visitation was beneficial to the boy. Since parental rights were not terminated until six months later, appellants trial counsel perhaps intended to defer raising this exception until the later hearing, which occurred after this appeal was filed.

In any event, as the facts discussed above demonstrate, there is nothing in the record to indicate that the juvenile court would have found Codys relationship with his father promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Jasmine D., supra, 78 Cal.App.4th 1339, 13491350.) Accordingly, appellant was not prejudiced by his counsels failure to explicitly raise this exception.

DISPOSITION

The order is affirmed.

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[1] Welfare and Institutions Code section 5150 provides in part: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.

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

[3] The Department suggests that this issue may be moot in light of evidence that appellant was hospitalized again in September 2006. Under the circumstances of this case, we do not believe this fact sufficient to justify a finding of mootness.

[4] The Department also urges us to avoid considering appellants IAC claim because it was not brought by writ of habeas corpus.  In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where there simply could be no satisfactory explanation for trial counsels action or inaction. [Citation.] [Citations.] Usually, however, [t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. . . . Evidence of the reasons for counsels tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. [Citation.] [Citations.] (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) We are not prohibited from reviewing this IAC claim, however, our inquiry is limited to the record on appeal.