In re Serena M.

Filed 9/28/07 In re Serena M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minor.

Appellant Jasper M. (father) appeals from a Welfare and Institutions Code^[1]section 366.26 order terminating parental rights to his daughter, Serena M. On appeal, father argues that the juvenile court failed to give him notice of the section 366.26 hearing, and that his trial counsel rendered ineffective assistance of counsel (IAC) when he failed to challenge erroneous information contained in a psychological evaluation report used to assess adoptability, failed to argue that the sibling bond relationship exception ( 366.26, subd. (c)(1)(E)) applied, and said father waived his attendance at the section 366.26 hearing. We affirm the order.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 2002, the San Bernardino County Department of Childrens Services (the department) filed section 300 petitions on behalf of Serena and her siblings, D.T. and Nicholas M. (collectively, the children).^[3] Serena was three years old at the time. The petitions alleged that the children came within section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). The petitions specifically alleged that the childrens mother (mother)^[4]was 5150d^[5]by the police on July 31, 2002, and was not able to provide appropriate care and supervision for the children. Serenas petition also alleged that father was not able to provide care for her. The detention report filed by the social worker listed father as the alleged father of Serena, but stated that his whereabouts were unknown. The court detained Serena and her siblings and placed them in the temporary custody of the department, but authorized the department to detain Serena with mother on the condition that there was appropriate adult supervision in [the] home. The court set a jurisdiction/disposition hearing for August 26, 2002.

The department soon located father in prison. On August 19, 2002, the court clerk sent notice of the jurisdiction/disposition hearing to him at Chuckawalla Valley State Prison, by certified mail. On August 23, 2002, father wrote to the court clerk and acknowledged receipt of the notice, but stated that he would not be able to appear on August 26, 2002. However, he said that he did not wish to relinquish his parental rights to Serena and asked for the hearing to be postponed until he would be capable of making an appearance.

Jurisdiction/disposition

On August 22, 2002, the social worker filed a jurisdiction/disposition report, recommending that Serena and her siblings be declared wards of the court and that father and mother be provided with reunification services. The social worker reported that father was incarcerated at Chuckawalla State Prison for violating his parole by possessing a firearm and a controlled substance, and his release date was October 13, 2002. Mother stated that he had been in prison for most of Serenas life; thus, he had never provided Serena with support or shelter. The social worker further reported that Serena and her siblings were placed in the same foster family home on July 31, 2002.

On August 26, 2002, pursuant to fathers request, the court continued the jurisdiction/disposition hearing to October 17, 2002, so that he could appear in court. On October 17, 2002, father was no longer in custody and appeared at the hearing. The court found him to be the presumed father of Serena. It also found true the amended allegations in the petition, and that Serena came within section 300, subdivisions (b) and (g). The court declared her a dependent of the court and ordered mother and father to participate in reunification services.

Six-month Status Review

The social worker filed a six-month status review report on April 3, 2003, recommending that Serena and her siblings remain in their foster home. Serena appeared to be happy in the foster home. The social worker also reported that father failed to communicate with the department or address any of the objectives in his case plan. Father had returned to prison in January 2003, and only visited Serena once during the period he was free from custody (from October 2002 to January 2003).

Father appeared at the six-month hearing with counsel. The court continued reunification services and set a 12-month hearing for October 20, 2003.

12-month Status Review

The social worker filed a 12-month status review report stating that father was still incarcerated and his tentative date of release was February 2004. The social worker noted that she received a message from him stating that he did not want to attend the 12-month hearing. The social worker recommended that reunification services be terminated and that the permanent plan of long-term foster care be implemented.

Father did not appear at the 12-month hearing, but was represented by counsel. Counsel for mother set the matter contested, and fathers counsel joined. The court set a pretrial settlement conference (PSC), as well as the contested 12-month hearing.

At the PSC on November 21, 2003, father did not appear, but was represented by counsel. The parties agreed to leave reunification services in place until an 18-month hearing on February 23, 2004.

18-month Status Review

The social worker filed a status review report on January 30, 2004, and changed the permanent plan recommendation to adoption. The social worker reported that father had not visited Serena in the past 18 months and that he failed to participate in the court-ordered case plan. Moreover, mother had not been in contact with the department for the past 60 days. The childrens foster parents agreed to adopt them as a sibling set, if the parents did not reunify with them.

Father did not appear at the 18-month hearing, but was represented by counsel. Father was still incarcerated in state prison. Fathers counsel informed the court that he was scheduled for release in three days. Fathers counsel set the matter contested. The court set a PSC for April 2, 2004, and the contested hearing for April 12, 2004.

Father appeared in court at the PSC on April 2, 2004, out of custody. The court continued the contested 18-month hearing to June 1, 2004, and ordered that reunification services be provided to father.

By the time of the hearing on June 1, 2004, father was incarcerated in state prison again. Fathers counsel said that he could not proceed in fathers absence, so he requested another continuance. The court continued the hearing to July 9, 2004, and asked fathers counsel to prepare a transportation order, so that father would be transported from prison to the hearing.

Father appeared at the July 9, 2004, hearing. The court found that father and mother failed to complete the court-ordered plan, terminated reunification services, and set a section 366.26 hearing for November 8, 2004.

Section 366.26 Hearings

The social worker filed a section 366.26 hearing report on October 28, 2004, and changed the recommendation from adoption back to long-term foster care. The foster parents noticed that D.T. had been defiant the last two weeks, which caused them to change their minds about adopting the children. The foster parents were still interested in adopting Serena, but the social worker stated that Serena would not be adopted without her siblings. The foster parents agreed to let the children stay in their home under long-term foster care, as long as they could handle them.

Father did not appear at the original section 366.26 hearing on November 8, 2004, but was represented by counsel. Fathers counsel submitted on the recommendation, and the court ordered long-term foster care as the permanent plan.

D.T. continued her defiant behavior and finally said that she no longer wished to live in the foster home. She was moved to a different foster home, but Serena and Nicholas stayed. The foster parents then stated that they wanted to adopt Serena and Nicholas The social worker requested another section 366.26 hearing, and the court set one for August 30, 2006, at a review hearing at which fathers counsel was present. Notice of the hearing was personally served on father at the Sierra Conservation Center, where he was incarcerated.

At the hearing on August 30, 2006, fathers counsel told the court that father was in state prison, but did not say whether he waived his right to be transported. The court granted the departments request to continue the hearing to October 6, 2006. Notice of the continued hearing was mailed to father at the Sierra Conservation Center.

At the hearing on October 6, 2006, fathers counsel informed the court that father ha[d] not signed in. All parties agreed to continue the matter to December 5, 2006. Father was again sent notice of the hearing at the Sierra Conservation Center.

On December 5, 2006, fathers counsel appeared at the section 366.26 hearing, but father did not. Fathers counsel told the court that father was in state prison. The court acknowledged that father was given notice of the hearing and apparently had not waived his appearance. Fathers counsel stated that he had no notice of a waiver, and that he wanted father to be present at the hearing. The court agreed, asked fathers counsel to prepare a transportation order, and continued the hearing for January 9, 2007. Fathers counsel prepared the transportation order, which instructed the director of the Sierra Conservation Center to deliver father into the custody of the San Bernardino County Sheriff on January 9, 2007, so that he could be transported to the section 366.26 hearing, unless he executed the waiver that was attached to the order (the written waiver). Father signed the written waiver.

Father did not appear at the section 366.26 hearing on January 9, 2007, and his counsel informed the court that father was in state custody and waived his appearance. Fathers counsel objected to the departments recommendation for adoption, but had no affirmative evidence. The court proceeded to terminate parental rights and select adoption as the permanent plan. Notice of fathers appeal rights was sent to him at the same address at the Sierra Conservation Center on January 11, 2007. Father filed a timely notice of appeal.

ANALYSIS

I. Father Received Notice of the Hearing

Father claims that the order terminating parental rights should be reversed because the department failed to give him notice of the January 9, 2007, section 366.26 hearing, and the record contains no waiver of his appearance. He further contends that the court violated Penal Code section 2625 by conducting the hearing in his absence, without a written waiver from him or an affidavit from the warden stating that he did not intend to appear at the hearing. We conclude that father received notice of the hearing and waived his appearance.

A. Father Had Sufficient Notice of the Hearing

Under section 294, subdivision (d), after an initial finding that notice has been given, notice of any continued section 366.26 hearing may be by any other means that the court determines is reasonably calculated, under any circumstance . . . . ( 294, subd. (d).)

Here, the January 9, 2007, hearing at which fathers parental rights were terminated was a continuation of the section 366.26 hearing held on December 5, 2006. Father does not challenge the notice he received for the December 5, 2006, hearing. He failed to appear at that hearing; thus, his counsel requested the court to continue the hearing to January 9, 2007, so that father could be present. As directed by the court, fathers counsel prepared the transportation order, which specified the date, time and place of the section 366.26 hearing, and sent it to the Sierra Conservation Center, where father was incarcerated. Father received all the notice the law required. We have no facts to suggest that another notice would have increased the likelihood that he would have appeared at the hearing. In fact, the record shows that father waived his appearance. (See post.) Under all the circumstances, the notice father received was reasonably calculated to apprise him of the date, time, and place of the January 9, 2007, hearing.

B. Father Waived His Appearance

Father acknowledges that, at the January 9, 2007, hearing, his counsel informed the court that he was in prison and waived his appearance. Yet, he contends that the court erred in proceeding with the hearing without requiring a written waiver, in violation of Penal Code section 2625, subdivision (d). This claim is meritless.

Penal Code section 2625, subdivision (d), provides, in relevant part: No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . without the physical presence of the prisoner or the prisoners attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.

The general rule is that personal appearance by a party at a civil proceeding is not essential; appearance by an attorney is sufficient and equally effective. [Citations.] (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.) Here, father was represented by counsel at the January 9, 2007, section 366.26 hearing, and his counsel informed the court that father waived his appearance. There was nothing before the juvenile court, or before this court, to question counsels representation of the waiver. Thus, fathers counsels representation was sufficient, and the court properly proceeded with the hearing. In addition, the record shows that father signed the waiver that was attached to the transportation order, indicating that he had no desire to attend the hearing, and that the written waiver was a part of the record at the hearing. The written waiver clearly corroborates fathers counsels oral statement to the court that he waived his appearance at the section 366.26 hearing.

Assuming arguendo that the court somehow violated section 2625, subdivision (d), by proceeding with the hearing in fathers absence, any error was harmless. (In re Jesusa V. (2004) 32 Cal.4th 588, 624-625; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Under the Watson standard, we reverse only if it is reasonably probable the result would have been more favorable to the parent absent the error. Father does not even attempt to argue facts to support reversal under this standard. He does not point to any evidence he would have offered to show that Serena was not adoptable, and there is simply nothing in the record to suggest he could or would have been able to care for her upon his release from prison. Moreover, his interests were represented by counsel at the section 366.26 hearing, and his counsel objected to the recommendation for adoption as the permanent plan. Thus, it is not reasonably probable that the result would have been any different if father had been present at the hearing.

We note that, at the time father filed his opening brief on appeal, in which he asserted that the record contained no waiver of his appearance, he also filed a request to augment the record with any written waiver signed by him. The superior court clerk initially stated that the record contained no such written waiver, but later supplied this court with a copy of the waiver signed by father. The clerk also stated that the signed waiver was a part of the record on January 9, 2007. In another request to augment, father asked for an affidavit from the San Bernardino County juvenile dependency court clerk indicating when and how the signed waiver was made a part of the record on January 9, 2007. We reserved ruling on this request for consideration on appeal. In light of our decision, we now deny that request as unnecessary.

II. Fathers IAC Claim Fails

Father argues that he received IAC when his attorney: 1) incorrectly told the court that [he] had waived attendance at the hearing when no such waiver had been filed; 2) failed to correct false information regarding the reasons why the children were originally removed from mothers custody, as contained in the psychological evaluation report used to assess Serenas adoptability; and 3) failed to argue the sibling relationship exception. ( 366.26, subd. (c)(1)(E).) Fathers IAC claim fails.

A. Fathers IAC Claim Needs to Be Brought by Writ of Habeas Corpus

At the outset, we note that father has improperly raised his IAC claim on appeal. 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.) Here, the evaluation of fathers counsels decisions and tactics would require consideration of matters outside the appellate record. Accordingly, the issues must be adjudicated by means of petition for writ of habeas corpus.

Nonetheless, on the record before us, fathers IAC claim is without merit.

B. Standard of Review

To prevail on the claim of IAC, father must demonstrate both that his attorney failed to act in the manner expected of a reasonably competent advocate, and that it is reasonably probable that a more favorable determination would have been made in the absence of counsels error. (Strickland v. Washington (1984) 466 U.S. 668, 687-696 [104 S.Ct. 2052, 80 L.Ed.2d 674]; In re Cox (2003) 30 Cal.4th 974, 1019-1020 (Cox).) A failure on either showing will result in rejection of the claim. (Cox, at pp. 1019-1020.)

C. Fathers IAC Claim Fails

We reject fathers claim that his counsel incorrectly informed the court that he waived his appearance on the first prong of the analysis. Father has simply failed to demonstrate that his counsel acted incompetently, in that he has given us no reason to question his counsels representation to the court that he waived. Father has not denied that he waived his appearance, as shown by the written waiver. Rather, he argues that the written waiver [did] not appear to have been part of the record available to the juvenile court on January 9. This contention is contradicted by the superior court clerks sworn affidavit filed on July 10, 2007. Moreover, as discussed ante, no written waiver was required, since he was represented by counsel at the hearing. (See ante, I.) In sum, on the record before us, it appears that fathers counsel properly informed the court that he waived. Any further analysis would require consideration of matters outside the appellate record, such as declarations from father and his counsel below.

We further reject fathers other claims on the prejudice prong of the analysis. Father argues that his counsel failed to correct some false information contained in a psychological evaluation report about Serena. He asserts that the report grossly mis-characterized the childrens removal from their mother as due to abuse, severe neglect, and domestic violence. (Father is correct, in that the children were removed because mother was 5150d by the police and was not able to provide appropriate care and supervision for the children.) He argues that absent this false information, the department may not have been able to recommend adoption, since it obtained the foster familys agreement to adopt by allegedly relying on the false information to get certain funding for the prospective adoptive family. Fathers argument appears to be premised on the notion that Serenas adoptability was dependent on getting her foster family more funding, which was a condition of the familys willingness to adopt her. However, [t]he issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) Father ignores the actual evidence of Serenas adoptability and fails to explain how the courts finding of adoptability would have been different if his counsel had corrected the false information in the psychological report. His claim fails for lack of prejudice.

Fathers contention that his counsel erred in failing to argue the sibling relationship exception under section 366.26, subdivision (c)(1)(E) also fails for lack of prejudice. The sibling relationship only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) Any sibling relationship argument would have failed since the foster parents planned to adopt Serenas brother, along with Serena, and since there was no evidence that she would suffer any detriment from severing her relationship with D.T. Moreover, even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.) Valuing Serenas continuing relationship with D.T. over adoption would deprive her of the ability of gaining the permanent home that her foster parents are ready to provide for her. Since the benefits of adoption clearly outweighed the benefits of continuing Serenas relationship with D.T., father was not prejudiced by his counsels failure to argue the sibling relationship exception.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ HOLLENHORST

J.

We concur:

/s/ RAMIREZ

P.J.

/s/ GAUT

J.

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

^[2] Counsel for Serena filed a brief on June 19, 2007, joining in respondents brief and urging us to affirm the order.

^[3] D.T. and Nicholas are not subjects of this appeal.

^[4] Mother is not a party to this appeal.

^[5] Section 5150 allows the police to place a person who is a danger to herself or others, as a result of a mental disorder, in a mental health facility for treatment and evaluation. ( 5150.)