In re Jordan H.

Filed 6/16/06 In re Jordan H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Referee. Affirmed.

Brandon H. appeals following the disposition hearing in the dependency case of his son, Jordan H. Brandon challenges the trial court's jurisdictional findings on the basis that (1) his submission on the social worker's reports at the jurisdictional hearing was not knowing and intelligent; and (2) the court's true finding that he failed to protect Jordan is not supported by substantial evidence in the social worker's reports. Brandon also seeks a reversal of the trial court's order at the disposition hearing denying placement of Jordan with Brandon. Brandon argues (1) he received ineffective assistance of counsel at the disposition hearing because his attorney did not request the trial court to declare him a "Kelsey S. father" under In re Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.);^[1] and (2) substantial evidence does not support the trial court's finding that it would be detrimental to Jordan to place him with Brandon.

We conclude that Brandon knowingly and intelligently consented to have the jurisdictional issue decided on the basis of the social worker's reports. Although we agree with Brandon that the social worker's reports do not support a true finding that he failed to protect Jordan, we do not disturb the trial court's ruling that Jordan was a person described under Welfare and Institutions Code^[2] section 300, subdivision (b), as his mother's neglect alone provided a sufficient basis for that finding. Further, we conclude that Brandon's claim that he received ineffective assistance of counsel fails because he has failed to establish prejudice. Finally, we conclude that substantial evidence supports the trial court's finding of detriment to Jordan if he was placed with Brandon. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late July 2005, when Jordan was eight months old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition under section 300, subdivision (b).^[3] The petition alleged that Jordan's mother, Tamra H., handed over Jordan to the police, saying she had relapsed into methamphetamine use after a year of sobriety and was "going straight into detox," and that Jordan's father had "failed and been unable to protect and supervise" him. The petition listed Brandon as Jordan's alleged father. Jordan was detained in a foster home.

Tamra told the Agency that Brandon was Jordan's father and was "a druggie." She said she last saw Brandon in Sacramento in May 2004, when she "was running for her life as he tried to kill her on a number of occasions while she was pregnant." She had no idea where Brandon was and did not want him found. Consistent with Tamra's statement, Tamra's brother told the Agency that Tamra went to Sacramento with Brandon; Brandon was on drugs at the time; and Tamra returned to San Diego after Brandon beat her.

On August 4, 2005, the Agency found a possible address for Brandon in Sacramento. The social worker sent him a letter dated August 5, which stated that Brandon had "been named as a possible father of a child we have in protective custody." Noting that there was a hearing on August 15, the letter asked Brandon to call the social worker immediately so that she could determine whether he was the father and wanted reunification services. Sometime before August 15, Brandon and the social worker established telephone contact and he demanded paternity testing. On August 19, the juvenile court sent a copy of the petition and a notice of hearing to Brandon at the Sacramento address.

Brandon first appeared in court on September 14, 2005, at a settlement conference for the jurisdictional and disposition hearing. Through his appointed counsel, Brandon requested paternity testing and visitation pending the test results. The court ordered paternity testing, but deferred visitation until paternity was established.

Paternity testing had not yet been completed by the September 23, 2005 jurisdictional hearing. Tamra submitted to a decision on the jurisdictional issue based on the content of social worker's reports, but Brandon arrived late to the jurisdictional hearing, and thus did not have a chance to go over the issues with his attorney prior to the hearing. The court stated that it would go over the issues with Brandon on the record and that it would follow up with a written waiver of rights form. After a dialogue with the court, Brandon stated that he wished to submit the issue of jurisdiction on the basis of the social worker's reports. The court found that both Brandon and Tamra "knowingly and intelligently waived their trial rights" and thereafter entered a true finding on the petition, based on the content of the social worker's reports, finding Jordan to be a person described under section 300, subdivision (b).

After receiving the results of the paternity test, the court held a disposition hearing on October 17, 2005. First, based on the test results, the court found that Brandon was Jordan's biological father and entered a judgment of paternity. Brandon's counsel did not make a request that Brandon be declared a Kelsey S. father. Next, after hearing testimony from Brandon, Tamra and the social worker, the court declared Jordan to be a dependent of the court and examined whether to place Jordan in Brandon's custody. The court stated it was "pleased that [Brandon] is now willing to step forward and take responsibility for his son" and found "that [Brandon] has carried his burden under section 361.2." This reference was to the statutory provision stating that when the court determines "there is a parent of the child, with whom the child was not residing [and] if that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well being of the child." (§ 361.2, subd. (a).)

Although the court found that Brandon met his burden by showing he was a noncustodial parent requesting placement of the child with him under section 361.2, it found "by clear and convincing evidence that it would be detrimental to place Jordon with him at this time" because Brandon "does not yet have a relationship with Jordan;" he "would have to provide stable and appropriate housing;" and he "would have to demonstrate appropriate parenting skills." Therefore, the court ordered that "the care and custody of Jordan be placed with the Agency, who are instructed to find suitable licensed foster care" and gave the social worker discretion to place Jordan with an approved relative.

The court stated that it would "exercise its discretion with [Brandon] being the biological father and order the Agency to provide services to him," including visitation and parenting classes. The trial court also ordered an evaluation by the Substance Abuse Recovery Management System (SARMS) for Brandon. Further, because Brandon indicated that if he eventually obtained custody of Jordan, he would live in his father and stepmother's house, the court ordered background checks on the father and stepmother, upon Brandon's representation that they consented to that procedure.

II

DISCUSSION

A

Brandon's Challenges to the Jurisdictional Findings

Brandon presents two arguments in support of his challenge to the court's true finding regarding the allegations of the petition at the jurisdictional hearing: (1) that he did not knowingly and intelligently waive his right to trial on the jurisdictional issue and (2) that the jurisdictional findings are not supported by substantial evidence.

1. Brandon Knowingly and Intelligently Waived His Right to Trial

Brandon argues that he did not knowingly and intelligently waive his right to a trial as to the petition's allegation that the "child's father has failed and been unable to protect and supervise [Jordan]." He claims that he "misunderstood the nature of the allegation against him and was misinformed about the purposes of the jurisdictional hearing" because he was not told that there would be a finding on whether he failed to protect Jordan. We reject this argument.

"[I]n a jurisdictional proceeding, the court must advise the parents of their due process rights to a hearing and must obtain an express personal waiver of those rights if the hearing is to proceed without further evidence." (In re Monique T. (1992) 2 Cal.App.4th 1372, 1374; see also Cal. Rules of Court, rules 1412(j) & 1449(b)^[4] [providing that the court must advise parents of their trial rights prior to accepting a plea to submit the jurisdictional issues on the social worker's report].) Rule 1449(f)(3), (4) requires that when accepting a plea to submit on the reports, the court must find, among other things, that "[t]he parent . . . has knowingly and intelligently waived the right to a trial on the issues by the court [and] understands the nature of the conduct alleged in the petition and the possible consequences . . . ."

In support of his argument, Brandon points to a portion of his colloquy with the court, during which the court asked whether "you have had enough time to speak with your attorney, concerning what your plea of submission means?" Brandon replied, "What I'm answering to, is basically what was really written in the report about her," referring to the allegations about Tamra. Immediately thereafter, the court clarified, "With your plea of submission, you would be allowing the court to review the reports, based on a reading of the reports, the court would then make a decision, whether or not, the allegations in the petition are true or not. Having read the reports, in all likelihood, the court would find that they are true." Brandon then indicated that he had "read the reports," and started to explain, before the court cut him off, that he was present in court because he had received a letter and had not been able to find Tamra "for a long time." Based on this colloquy, Brandon argues that the transcript shows that he was never specifically informed that the court would be deciding whether he had failed to protect Jordan.

We review the totality of the circumstances to determine whether Brandon's waiver was knowing and intelligent. (In re Patricia T. (2001) 91 Cal.App.4th 400, 404-405 [concluding that the court should apply a standard of review derived from criminal law cases to determine whether the agreement to a waiver of trial rights in a dependency case was knowing and intelligent].) Applying that standard, we determine that the totality of the circumstances show that Brandon's waiver was knowing and intelligent, and, specifically, that Brandon was informed that the trial court would be making a finding on the allegations in the petition, which included the allegation that Brandon had failed to protect Jordan.

In reaching this conclusion, we rely on the fact that after Brandon stated that he believed the trial court would be considering what was "written in the report" about Tamra, the trial court clarified that it would be making a decision on whether the allegations in the petition were true or not. Further, in a portion of the colloquy that Brandon does not rely upon, the court extensively explained Brandon's right to trial on the allegations of the petition and the consequences of a true finding on the petition, including a possible termination of Brandon's parental rights at a later date. We also rely on the fact that it is clear from the record that Brandon had received and read the petition.^[5] Further, Brandon reviewed and signed the written waiver of rights form, which stated "I have read the petition and I understand it" and "I understand that if I . . . submit the matter on the report, the court will probably find that the petition is true."

Based on these items in the record, we conclude that the totality of the circumstances shows that Brandon knowingly and intelligently waived his right to trial on the jurisdictional issue, including the allegation that he failed to protect Jordan.

2 The Court's True Finding on the Allegation that Brandon Failed to Protect Jordon is Not Supported by the Content of The Social Worker's Report

Brandon next argues that even if he validly agreed to submit to the court's jurisdiction on the basis of the social worker's reports, those reports contained insufficient evidence to support a finding that he failed to protect Jordan.^[6]

We review the trial court's finding for substantial evidence. (See In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Substantial evidence is that which "is reasonable, credible, and of solid value to support the conclusion of the trier of fact." (Ibid.) For the following two reasons, we agree with Brandon that substantial evidence does not support the true finding that he failed to protect Jordan as provided in section 300, subdivision (b).

First, we conclude that there was insufficient evidence for the court to determine that Brandon failed to protect within the meaning of section 300, subdivision (b), because that provision expressly applies only to a parent or guardian's failure to protect. (§ 300, subd. (b) [referring to "the failure of [the child's] parent or guardian to adequately supervise or protect the child"], italics added.) At the time of the jurisdictional hearing, Brandon was only an alleged father and had challenged his paternity and asked for paternity testing. As an alleged father, Brandon could not have been found to be a "parent or guardian" under the terms of section 300, subdivision (b).

Second, even if Brandon was considered a "parent" described in section 300, subdivision (b), at the time of the jurisdictional hearing, the finding that Brandon failed to protect Jordan is not supported by substantial evidence in the social worker's report. The social worker's report established that Tamra last had contact with Brandon three months into her pregnancy, after which she left Sacramento and moved to San Diego. The report contained no evidence that Brandon was aware of Jordan's existence or that Brandon could have located Tamra had he wanted to. Tamra told the social worker that she did not want Brandon to be located, and she did not list Brandon as the father on Jordan's birth certificate. Tamra did not cooperate in locating Brandon by providing any statistical information to enable the social worker to find him. Brandon was located by the social worker and made aware of Jordan's existence only after the dependency proceedings had already commenced.

A finding of failure to protect requires, at a minimum, the father's "neglectful conduct." (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) The Agency had the burden to prove Brandon's failure to protect by a preponderance of the evidence. (§ 355, subd. (a).) Here, where there is no evidence in the report that Brandon was aware of Jordan's existence or knew how to find Tamra, there is insufficient evidence to support a finding that Brandon engaged in neglectful conduct.

Although we agree that there was no substantial evidence supporting the trial court's true finding that Brandon failed to protect Jordan, we conclude that the error was harmless to the outcome of the jurisdictional hearing, and we therefore do not disturb the trial court's conclusion that Jordan is a person described under section 300, subsection (b). We reach this conclusion because the juvenile court was entitled to assume dependency jurisdiction over Jordan based solely on Tamra's actions, without regard to Brandon's conduct.

"Dependency proceedings are civil in nature and are designed to protect the child, not to punish the parent. [Citation.] Therefore, the court takes jurisdiction over children (§ 300); it does not take jurisdiction over parents. Moreover, the court has jurisdiction over the children if the actions of either parent bring the child within one of the statutory definitions in section 300." (In re Joshua G. (2005) 129 Cal.App.4th 189, 202, italics added.) "[T]he minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397, italics added.)

Here, the social worker's report establishes that Tamra asked child protective services to pick up Jordan because, according to Tamra she "was homeless and had a drug problem" and "need[ed] to go to a detox center." These statements support a finding that Jordan was a person described in section 300, subdivision (b), because of a "the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse." (§ 300, subd. (b).) Indeed, Brandon concedes that "[Tamra's] conduct supported the juvenile court's declaration of dependency." He also states that he does not challenge the true finding "because he disputes the declaration of dependency," but instead because he does not want to be bound by a finding that he failed to protect Jordan.^[7] Accordingly, the trial court's error in entering a true finding that Brandon failed to protect Jordan constitutes harmless error, and we do not disturb the trial court's jurisdictional finding that Jordan is a person described under section 300, subsection (b).

B

Brandon's Challenges to the Outcome of the Disposition Hearing

Brandon challenges the disposition on the grounds (1) that he was denied effective assistance of counsel; and (2) that substantial evidence does not support the trial court's finding that it would have been detrimental to Jordan to place him with Brandon.

1 Brandon Has Shown No Prejudice Resulting From the Alleged Ineffective Assistance of Counsel

Brandon argues that he received ineffective assistance of counsel during the disposition hearing because his counsel did not request that the trial court find Brandon to be a Kelsey S. father.

Section 317.5 provides that "[a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." This right has been " 'interpreted in substantially the same manner as the constitutional right to the effective assistance of counsel.' [Citation.]" (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) A claim of ineffective assistance of counsel has two components. First, Brandon must show that his attorney failed to act in a manner expected of reasonably competent counsel acting as a diligent advocate. Second, Brandon must show that he was prejudiced by counsel's incompetent representation. (In re O.S. (2002) 102 Cal.App.4th 1402, 1407; In re Arturo A. (1992) 8 Cal.App.4th 229, 237; Strickland v. Washington (1984) 466 U.S. 668, 687.) An appellate court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) Therefore, if Brandon does not show he was prejudiced by the purported deficient performance of counsel, we will reject his claim without deciding whether counsel acted competently.

Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S at p. 694; see also In re O.S., supra, 102 Cal.App.4th at p. 1407 [on appeal we "review the matter to determine whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error"].) As we explain, we conclude that Brandon has not identified a reasonable probability of a more favorable result at the disposition hearing had counsel asked the trial court to declare Brandon to be a Kelsey S. father.

Brandon argues that Kelsey S. fathers are accorded several rights that are not automatically accorded to mere biological parents. Specifically, he asserts that Kelsey S. fathers are entitled to appointed counsel under section 317, are entitled to custody absent a finding of detriment to the child under section 361.2, subdivision (a), and are entitled to reunification services under section 361.5, subdivision (a).^[8] However, in this case, although Brandon was not expressly found to be a Kelsey S. father, he nonetheless received all of these benefits at the disposition hearing. First, Brandon was represented by an appointed attorney. Second, the court considered whether to place Jordan with Brandon pursuant to section 361.2, subdivision (b), but decided not to do so under the statutory standard because it would be detrimental to Jordan. Third, the court ordered that Brandon was to receive reunification services.

Because Brandon has not identified any way in which he would have been treated differently at the disposition hearing had he been declared a Kelsey S. father, we conclude that it is not reasonably probable that there would have been a different result at the disposition hearing had Brandon's counsel requested a finding on Kelsey S. status.^[9] Accordingly, based on the lack of prejudice to Brandon from the alleged error of his counsel, we reject Brandon's argument that he received ineffective assistance of counsel.

2. The Trial Court's Finding of Detriment Is Supported by Substantial Evidence

We next examine Brandon's challenge to the trial court's finding under section 361.2, subdivision (a) that it would be detrimental to place Jordan with him

In reviewing the trial court's finding of detriment to Jordan, "[w]e review the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that . . . the children would suffer such detriment. [Citations.] Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) We determine that the record amply supports the trial court's finding that placement with Brandon would be detrimental to Jordan because Brandon had not established a relationship with him, provided stable and appropriate housing, or demonstrated parenting skills.

At the time of the disposition hearing, Brandon had not met Jordan or formed a relationship with him. Brandon had been living with his father and stepmother in El Cajon for five weeks. Brandon's father and stepmother had not been fingerprinted or cleared, and Brandon had not asked the Agency to evaluate the home. The social worker testified, "Jordan is ten months old. He has no relationship with [Brandon]. [Brandon] has not parented any other children that I know of. And he will have to acquire some parenting, some knowledge of parenting, and some stability for this child . . . . He has demonstrated neither." Accordingly, the social worker recommended that Jordan not be placed with Brandon, but that Brandon receive parenting classes and other services. "Social workers are frequently recognized as experts in assessing risk and placement of children." (In re Luke M., supra, 107 Cal.App.4th at p. 1427.) Thus, "[t]he trial court could properly credit the social worker's assessments in this regard." (Ibid.)

Based on the record we have described, we conclude that the trial court's finding at the disposition hearing that it would be detrimental to place Jordan with Brandon is supported by substantial evidence.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] A "Kelsey S. father" is an unwed biological father who "promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise" but who is prevented by a third party from taking the child into his home and thereby achieving presumed father status. (Kelsey S., supra, 1 Cal.4th at p. 849.)

^[2] Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[3] That subdivision allows a dependency where, among other things, "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . or by the inability of the parent . . . to provide regular care for the child due to the parent's . . . substance abuse."

^[4] All further rule references are to the California Rules of Court.

^[5] At an earlier hearing on September 14, 2004, Brandon's attorney indicated, in Brandon's presence, that Brandon had received and read a copy of the petition and understood its allegations. The trial court then found that Brandon had been served with the petition and been advised of the nature and purpose of the petition.

^[6] Brandon is not precluded from challenging the evidentiary support for the trial court's true finding despite his decision to submit on the social worker's reports. (In re Miguel E. (2004) 120 Cal.App.4th 521, 543 [submission on social worker's report "does not operate as a waiver of [party's] right to contend that the court's decision was unsupported by substantial evidence"]; In re Richard K. (1994) 25 Cal.App.4th 580, 589-590 ["the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion"].)

^[7] Based on our determination that the finding was not supported by substantial evidence, Brandon is no longer bound by that finding.

^[8] We express no view on whether Brandon accurately represents the rights to which a Kelsey S. father is entitled.

^[9] We note that Brandon's reply brief also argues that Kelsey S. fathers may be treated differently from biological fathers at later stages of a dependency proceeding, such as with respect to termination of parental rights. We stress that we have not based our analysis of prejudice on the outcome of any hypothetical future proceeding. The outcome of future proceedings is not relevant to our analysis because Brandon is free to timely request a finding from the trial court that he be declared a Kelsey S. father. Indeed, at a later stage of the proceedings, assuming that Brandon has availed himself of reunification services and has shown a continued commitment to becoming involved in Jordan's life, he will undoubtedly have a stronger foundation for a request to be declared a Kelsey S. father than he would have had at the disposition hearing.