Victor T. v. Superior Court

Filed 5/5/06 Victor T. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Charles B. Pfister, Judge.

Barbara McDaniel Harris, for Petitioner.

No appearance for Respondent.

B. C. Barmann, Sr., County Counsel, Susan Gill and Jennifer E. Zahry, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 38) from respondent court's order issued at a post permanency plan review hearing (Welf. & Inst. Code, § 366.3)^[1] at which the juvenile court ordered a section 366.26 hearing to consider changing the permanent plan for petitioner's daughter S. from long-term foster care to legal guardianship. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

The instant dependency proceedings were initiated in September 2003 when then eight-year-old S. and her two half-siblings were removed from the custody of their mother Angela by the Kern County Department of Human Services (department) after Angela was arrested on drug-related charges. The department filed a dependency petition on the children's behalf alleging Angela failed to protect them. (§ 300, subd. (b).) The petition identified petitioner as S.'s alleged father.

The juvenile court assumed dependency jurisdiction over the children and ordered reunification services for Angela. The court also declared petitioner S.'s presumed father and set a separate dispositional hearing to consider his request for custody of S.

After evaluating petitioner's circumstances, the department concluded S.'s best interest would be better served by offering petitioner reunification services rather than placing her in his custody. The department based its opinion in part on petitioner's intention of turning S. over to his mother rather than caring for her himself and evidence he was actively using methamphetamine. Accordingly, on December 2, 2003, the court ordered petitioner to complete a parenting program, participate in substance abuse treatment and submit to random drug testing. The court also granted petitioner monthly two-hour visitation.

Petitioner was provided 12 months of reunification services yet made no effort to participate in them nor did he visit or inquire about S.'s well-being. Meanwhile, Angela was convicted and sentenced to five years in state prison. Consequently, at the 12-month review hearing on October 28, 2004, the court ordered S. and her half-siblings into long-term foster care and set the first post permanency plan review hearing for October 27, 2005.

Over the next year, petitioner maintained minimal contact with the department, provided no verification that he completed any of his court-ordered services and only visited S. three times. S. meanwhile had adjusted well to foster care and enjoyed visits with her siblings and monthly visits with her paternal grandmother. Consequently, at a continued post permanency planning hearing on November 30, 2005, the court continued S. in long-term foster care and set the next review hearing for November 29, 2006. However, shortly after the November 30 hearing, S. and her foster parents informed the department that they wanted to pursue a plan of legal guardianship. Consequently, on December 12, 2005, the department filed a section 388 petition to modify S.'s plan.

The hearing on the section 388 petition was conducted on February 3, 2006. Petitioner appeared through counsel who objected for the record but presented no evidence. The court granted the section 388 petition and set the section 366.26 hearing for June 1, 2006. On April 20, 2006, petitioner filed a notice of intent to file a writ petition.^[2]

DISCUSSION

I. Petitioner waived appellate review of the juvenile court's removal order.

Petitioner essentially argues that, as S.'s noncustodial parent, he had a right under section 361.2, subdivision (a) to custody of her unless the court found placement with him would be detrimental. Since the court did not make such a finding when it issued its removal order, he claims the court erred. We conclude he waived appellate review of the removal order.

The decision to order a child removed from parental custody is made at the dispositional hearing. (§ 361, subd. (c)(1).) Before removing a child, section 361.2 requires that the court first determine whether there is a noncustodial parent who desires custody of the child. (§ 361.2, subd. (a).) If the noncustodial parent requests custody, the court must place the child with the parent unless it finds that placement with that parent would be detrimental to the child. (Ibid.)

In this case, the dispositional hearing was conducted on December 2, 2003, and petitioner did not challenge the juvenile court's removal order by direct appeal from the dispositional order. Having failed to do so, he waived his right to now argue there was insufficient evidence of detriment to support the order or that the juvenile court erred in not making the required finding of detriment. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.)

Even if we did not find waiver, we would nevertheless conclude substantial evidence supports the juvenile court's removal order and affirm it. Though petitioner denied it, there was evidence he had an unresolved drug problem. In addition, he was not cooperative in arranging a time to have the department evaluate the safety of his home. Under those circumstances, the juvenile court properly found that it would be detrimental to place S. in petitioner's custody and that her removal was warranted.

II. Petitioner did not receive ineffective assistance of counsel.

Petitioner claims trial counsel was ineffective for advising him he did not have to attend certain hearings, for not objecting to S.'s placement in a foster home and for not pointing out that petitioner's mother wanted custody of S. We find no merit to his claim.

A petitioner asserting ineffectiveness of counsel must prove trial counsel's performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsel's performance if petitioner fails to prove prejudicial error; i.e., absent counsel's errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that but for counsel's performance, the juvenile court would have placed S. in his custody.

In this case, there is no evidence that petitioner was prejudiced in any way by trial counsel's handling of his case. Even if trial counsel advised petitioner not to attend certain hearings, counsel appeared and represented him at each one. Further, petitioner does not explain how his case was adversely affected by his absence or indicate what he would have presented in his favor had he been there. In addition, there was absolutely nothing that petitioner's attorney could have done to change the outcome of these proceedings. There was ample evidence to support the court's assumption of dependency jurisdiction based on Angela's criminal conduct. There was also sufficient evidence, as we discussed above, to support the court's order removing S. from petitioner's custody. Further, petitioner's complete failure to attempt reunification justified the court's termination of services and ordering a permanent plan of long term foster care. Finally, the department was well aware that petitioner's mother wanted custody of S. yet, according to the record, his mother was not willing to commit to a permanent plan of adoption or legal guardianship. There is absolutely no evidence to support a claim of ineffective assistance of counsel. We find no error.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^* Before Harris, Acting P.J., Cornell, J., and Dawson, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Real party in interest urges this court to dismiss the writ petition because the notice of intent was filed a day late. We decline to do so, having found good cause for the late filing. However, we advise appellate counsel to review the time frames for filing an extraordinary writ petition (Cal. Rules of Court, rule 38.1) as her delay in filing the instant writ exposed the case to dismissal and severely reduced real party's time in which to file a response.