In re Richard R.

Filed 10/5/06 In re Richard R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel, Referee (pursuant to Cal. Const., art. VI, § 21). Affirmed.

John L. Dodd & Associates, Lisa A. DiGrazia, Attorney for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jerry M. Custis, Senior Deputy County Counsel, for Petitioner and Respondent.

INTRODUCTION

Erica S. (mother), mother of Richard R., Jr. (Richard), appeals from the January 30, 2006, order terminating her parental rights, and the appeal is based in part on a July 12, 2005, order denying her visitation with Richard. On appeal, mother contends that a “Notice of Intent to File Writ Petition and Request for Record” that she filed on February 10, 2006, should be construed as a timely filed notice of appeal. Mother also contends that she may contest the denial of visitation on appeal in the absence of an objection in the juvenile court because her attorney’s failure to object constituted ineffective assistance and that her failure to challenge the juvenile court’s visitation order by writ must be excused because the clerk failed to timely serve notice of her right to file a writ and the clerk mailed the notice to the incorrect address. Mother further contends that the order denying her visitation was not supported by substantial evidence and, thus, it and the resulting order terminating her parental rights must be reversed. Mother finally contends that the termination of her parental rights after she was erroneously denied visitation violates due process. We affirm.

BACKGROUND

Mother and Richard S. (father) had a history of substance abuse and of living a transient lifestyle. Mother and father had three children, Johnny R., born in November 2001; Alexus R., born in November 2002; and Richard, born in January 2005. At the time that the Department of Children and Family Services (Department) filed a petition under Welfare and Institutions Code section 300[1] alleging that Richard came within the jurisdiction of the juvenile court, Johnny and Alexus were already dependents of the court. Mother and father had failed to reunify with Johnny and Alexus and their parental rights as to those children had been terminated. Johnny and Alexus were living in an adoptive home.

Department reports state that, at Richard’s birth, both Richard and mother tested positive for amphetamines. A second test of Richard was inconclusive. A risk assessment completed the day after Richard’s birth in January 2005, “indicated that the risk level was high and should be promoted to a case.” Because Richard’s second drug test did not substantiate the first test, a Voluntary Family Maintenance agreement was entered. The agreement required mother and father to, among other things, remain drug free, submit to random drug testing, and attend drug rehabilitation classes.

Mother and father failed to comply with the Voluntary Family Maintenance agreement. On April 11, 2005, mother and father tested positive for amphetamines and methamphetamines. On May 10 or May 17, 2005, mother and father failed to attend a drug rehabilitation meeting. On May 11, 2005, mother and father left the maternal grandmother’s home with Richard, telling the grandmother that they were going to the movies.[2] They returned four days later without an excuse or reason for their absence and without having called the grandmother during their absence. On May 19, 2005, a safety assessment determined that Richard was at immediate risk, and he was removed from mother’s and father’s care. Richard was placed in the same home as his brother and sister.

On May 24, 2005, the Department filed a petition under section 300, subdivisions (b) and (j) alleging that Richard’s physical and emotional well being had been placed at risk due to mother’s and father’s history of substance abuse, their frequent use of amphetamines and methamphetamines, their violation of a court order to stop using illicit drugs, their violation of the Voluntary Family Maintenance agreement, and their failure to reunify with Johnny and Alexus who were dependents of the juvenile court due to mother’s and father’s substance abuse and Alexus having shaken baby syndrome. Mother and father attended the detention hearing.[3]

At the detention hearing, mother’s attorney informed the juvenile court that mother was a registered member of the Cheyenne River Sioux tribe, but that Richard was not registered. The court instructed the Department to provide notice to the tribe. The court stated to mother and father, “this is your official mailing address for all purposes. If you move and don’t tell the Department or your attorney and we notice you at this address and you don’t appear, I can make orders about your child without your presence.” Mother and father stated that they understood. The juvenile court found that a prima facie case had been established. The court granted mother and father weekly monitored visitation with Richard, and ordered mother and father to appear at a pretrial resolution conference on June 14, 2005.

Neither mother nor father attended the June 14, 2005, pretrial resolution conference. A Jurisdiction/Disposition Report that the Department filed June 14, 2005, states that although mother and father were allowed weekly visits with Richard monitored by the foster care agency, the parents failed to contact the agency to confirm their first visit, so visitation was cancelled. The juvenile court continued the matter to July 12, 2005, for an adjudication hearing.

Neither mother nor father attended the July 12, 2005, hearing. The juvenile court sustained the petition. The court removed Richard from mother’s and father’s custody and placed him in the custody of the Department. The court denied mother and father reunification, and ordered “absolutely no contact, no visitation with the child, unless and until the parents come to court.” Neither mother’s attorney nor father’s attorney objected to the court’s order that the parents not have contact or visitation. The court set the matter for a section 366.26 hearing on October 28, 2005. The court stated that the only way mother and father could “appeal” the order denying reunification services was by extraordinary writ. On July 14, 2005, the clerk mailed a copy of the court’s July 12, 2005, minute order, and documents concerning the filing of a writ petition to mother’s and father’s last know address.

According to the Department’s report for the section 366.26 hearing, Richard remained in his original placement with his brother and sister, and Richard’s caretakers had applied to adopt him. A social worker observed that Richard was receiving “lots of love and attention from his prospective adoptive mother” and was happy. Richard appeared “to be receiving the love and nurturing environment needed from [his] prospective adoptive family.” Richard had bonded with his prospective adoptive parents, his biological siblings, and the prospective adoptive parents’ home environment. The prospective adoptive parents were in the process of adopting Richard’s siblings. The Department recommended that mother’s and father’s parental rights be terminated with adoption as the permanent plan.

At the section 366.26 hearing on January 30, 2006, the juvenile court found that Richard’s case was a case under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) and granted the Cheyenne River Sioux tribe’s motion to intervene. The tribe supported adoption by Richard’s prospective adoptive parents if Richard was enrolled as a member of the tribe; Richard’s maternal grandmother, Rita S., had regular contact and visitation with Richard; and the prospective adoptive parents maintained contact with a cultural mentor provided by the tribe. The prospective adoptive parents agreed to the tribe’s requests.

Mother did not attend the section 366.26 hearing. Father attended the hearing in penal custody. Mother requested a continuance. The juvenile court denied the request. Mother did not object to the termination of her parental rights. Father stated a general objection to the termination of his parental right, but did not present any evidence in opposition. The court found Richard to be adoptable and terminated mother’s and father’s parental rights.

On February 10, 2006, mother filed a “Notice of Intent to File Writ Petition and Request for Record” concerning the termination of her parental rights under section 366.26. On April 12, 2006, mother filed a “Notice of Appeal -- Juvenile” concerning the termination of her parental rights. Mother submitted a letter with her notice of appeal explaining that she had filled out the incorrect paperwork to appeal the termination of her parental rights.

DISCUSSION

Mother Forfeited Review Of Her Contentions Because She Failed To Object

To The Trial Court’s Denial Of Visitation

Mother contends that the orders denying her visitation and terminating her parental rights was erroneous and that she must be granted at least six months of reasonable visitation with Richard because the trial court erred when it denied her contact or visitation with Richard “unless and until” she came to court.[4] Mother argues that her failure to appear in court was not substantial evidence that visitation would be detrimental to Richard and, thus, it and the resulting order terminating her parental rights were error. Mother also contends that the termination of her parental rights after she was improperly and erroneously denied visitation violates due process. Mother has forfeited all contentions based on the asserted error of the juvenile court in denying her visitation because she failed to object to the juvenile court’s order at the time and failed to object to the termination of parental rights.

“An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261].) Dependency cases are not exempt from this forfeiture doctrine. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [13 Cal.Rptr.3d 786, 90 P.3d 746]; In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [102 Cal.Rptr.2d 196].) The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. (In re S.B., at p. 1293.) Although forfeiture is not automatic, and the appellate court has discretion to excuse a party’s failure to properly raise an issue in a timely fashion (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [69 Cal.Rptr.2d 917, 948 P.2d 429]), in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion ‘should be exercised rarely and only in cases presenting an important legal issue.’ (In re S.B., at p. 1283.)” (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Mother failed to object to the juvenile court’s order denying contact or visitation unless and until she came to court. Accordingly, mother has forfeited review of her contention that the court erred in denying her visitation. (In re Wilford J., supra, 131 Cal.App.4th at p. 754.) Moreover, mother’s failure to object also forfeits review of her contentions that the trial court erred in terminating her parental rights and that the termination of her parental rights violates due process because the success of those arguments depends upon a holding that the juvenile court erred in denying visitation. Moreover, as to mother’s contentions concerning the juvenile court’s order terminating her parental rights, mother also forfeited these contentions by failing to object to that order on any ground. (In re Wilford J., supra, 131 Cal.App.4th at p. 754.)

Mother argues that we still should review her contentions because her attorney’s failure to object to the denial of visitation constitutes ineffective assistance of counsel. Mother contends that her claim of ineffective assistance of counsel is appropriate for review on appeal rather than by writ of habeas corpus because there could have been no satisfactory reason for her attorney’s failure to object.

Normally, the appropriate way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253-1254, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-413; People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [“claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding”]; People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The California Supreme Court makes clear that an appellate court should not brand an attorney incompetent “unless it can be truly confident all the relevant facts have been developed . . . .” (People v. Mendoza Tello, supra, 15 Cal.4th at p. 265.)

To establish ineffective assistance of counsel, mother has the burden of proving that her attorney’s representation was deficient and that this deficiency resulted in prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) The determination that counsel’s representation fell below an objective standard of reasonableness “generally must be made with deference to avoid the dual pitfalls of second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel ‘to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .’ [Citation.]” (In re Cordero (1988) 46 Cal.3d 161, 180; People v. Carter (2003) 30 Cal.4th 1166, 1211 [an appellate court presumes that an attorney’s conduct fell within the wide range of professional competence and that it can be explained as a matter of sound trial strategy].) Only if it is clear from the appellate record that there could have been no tactical reason for the attorney’s action or omission may the appellate court reach the determination that there was ineffective assistance of counsel. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.)

Mother has failed to show why her claims of ineffective assistance of counsel should be heard in an appeal, rather than in a petition for writ of habeas corpus. The record does not illuminate why mother’s attorney did not object to the denial of visitation. The absence of such information from the record is precisely why claims of ineffective assistance of counsel are more appropriately made by petition for writ of habeas corpus, when additional evidence outside the record may be brought to the court’s attention, rather than through an appeal. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; People v. Pope, supra, 23 Cal.3d at p. 426.)

Mother’s attorney may have had reasons for not objecting to the denial of visitation. Mother’s attorney may not have objected to the denial of visitation under the circumstances -- mother’s transient lifestyle, the termination of her parental rights to her other two children, her recent positive drug test, her failure to appear at the hearing, and her ability to request that visitation be reinstated by showing up in court -- believing that such an objection would have been without merit. Also possible is that mother expressed to her attorney that she did not desire visitation at that time. Without a properly developed record, we are unable to determine whether these or any other reasons guided counsel’s inaction. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; People v. Pope, supra, 23 Cal.3d at p. 426.)

Because mother has forfeited appellate review of all of her substantive contentions, we do not consider her procedural claim that her failure to challenge the juvenile court’s visitation order by writ must be excused because the clerk failed to timely serve notice of her right to file a writ and the clerk mailed the notice to the incorrect address

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

ARMSTRONG, Acting P. J.

KRIEGLER, J.

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[1] All statutory citations are to the Welfare and Institutions Code unless otherwise noted.

[2] The reports conflict about whether mother and father left the maternal or paternal grandmother’s home.

[3] The only other hearing mother attended in the case was a January 9, 2006, hearing at which Richard’s foster parents requested permission to take Richard on a trip to visit the foster parents’ relatives in Mexico. Father only attended the January 30, 2006, section 366.26 hearing.

[4] Citing authorities that assert that a notice of appeal is to be liberally construed (see e.g., Cal. Rules of Court, rule 37(c)(2); D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361), mother initially contends that we should construe her February 10, 2006, “Notice of Intent to File Writ Petition and Request for Record” as a timely filed notice of appeal. The Department does not oppose such a construction, and we will construe the February 10, 2006, filing as a notice of appeal.