In re S.J.

Filed 1/30/07 In re S.J. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Debra Losnick, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed. The petition for writ of habeas corpus is denied.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.

Ryamond G. Fortner, Jr., County Counsel, Larry Cory, Assistant county Counsel, William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

_________________________________________

Donna C. (mother) appeals from the order terminating her parental rights to L.C. and Jeremiah C. under Welfare and Institutions Code section 366.26.^[1] She contends the dependency court violated her statutory right to counsel and due process right to an opportunity to be heard when it conducted the termination hearing in her absence and her attorneys absence. As mother does not demonstrate prejudicial error, we affirm the judgment. Mother also petitions for a writ of habeas corpus seeking reversal of the termination order on the ground counsel provided ineffective assistance in failing to appear on her behalf at the hearing. As mother provides no evidence the result would have been more favorable had counsel been present, we conclude the petition fails to state a prima facie case for relief and deny the petition.

FACTS AND PROCEDURAL BACKGROUND

L., born in 1996, and Jeremiah, born in 2000, were the youngest of mothers eight children.^[2] L., Jeremiah, and four of their siblings (the children)^[3]lived with mother in a transient lifestyle. Mother severely neglected and abused the children. The childrens adult sibling acted as their mother. There was never enough food or clothing. The children typically went hungry during the last two weeks of every month, as mother gave her resources to whoever was her current boyfriend.

The Department of Children and Family Services (Department) detained the children in August 2003 and placed them in foster care. At the time of detention, the children were living with mother and the maternal grandmother in a motel room which contained one twin bed. The bathroom was in the hall and shared by all the motels residents. The children did not receive adequate food, had no bedding, and were not enrolled in school. Jeremiah suffered from asthma attacks, but mother had no medication or operational breathing machine for him in case of an attack. Mother looked on as maternal grandmother violently physically and verbally abused the children, and threatened to kill them. Mother beat two of the older children with instruments. One beating was so severe that 22 stitches were required to sew up the wound.

The children were declared dependents of the court on June 22, 2004. Custody was taken from the parents. Reunification services were ordered for mother. Mother was ordered to participate in individual counseling and other services designed to enable her to reunify with the children.

L. suffered from severe behavioral problems. She received medication and intensive therapeutic services and was hospitalized in an acute psychiatric hospital in June and July of 2004. In May 2005, L. and Jeremiah were placed in the home of their adult sibling. L. did extremely well there and made excellent progress in therapy. Subsequently, three more siblings were placed with them.

Mother failed to reunify with L. and Jeremiah, and her reunification services were terminated on June 28, 2005. She did not complete individual counseling. A section 366.26 hearing, to determine the permanent plan, was scheduled for October 24, 2005, and subsequently continued to February 15, 2006. On December 15, 2005, the Department notified mother it recommended termination of parental rights. On February 15, 2006, the section 366.26 hearing was continued to June 19, 2006, for reasons unrelated to L.s and Jeremiahs case. Mother did not request a contested hearing on the Departments recommendation.

On May 15, 2006, mother filed a petition under section 388 to modify the order removing custody from her and to place L. and Jeremiah in mothers custody. Mother alleged circumstances had changed in that she had substantially complied with the reunification case plan and consistently visited. Mother alleged the modification was in L.s and Jeremiahs best interest because the two children had a strong bond with mother and wanted to be reunited with her, and mother could properly care for them. The dependency court set a hearing for the petition on June 19, 2006, the same day as the date scheduled for the section 366.26 hearing. Mother submitted evidence that she had made strides in rehabilitation and visited regularly in late 2005 and early 2006. However, her counselor stated mother could not have custody because she did not have suitable housing. Moreover, L.s needs were being well-met in the home of her adult sibling.

In response to mothers section 388 petition, the social worker reported that L. stated she was happy living with her adult sibling, would like to live with father,^[4]and would like to live with mother. Jeremiah stated he wanted to live with mother. Weekly visits occurred usually in the adult siblings home. Mother did not have a residence where L. and Jeremiah could stay overnight. The social worker believed the central issue . . . is the physical abuse and mothers neglect of children when she becomes involved in a relationship with a man. Mother has an extensive history of not being able to maintain housing and the basic necessities of life for her children. These issues have not yet been addressed in individual counseling. Mother had not participated in individual counseling since reunification services were terminated.

Mother and counsel were present in court on June 19, 2006, for the section 388 and section 366.26 hearings that were scheduled for that day. The dependency court denied mothers section 388 petition, finding no significant change of circumstances and the requested change was not in L.s and Jeremiahs best interest. The dependency court stated it [could not] find by any stretch that . . . the requested change is in the childrens best interest. Mother appealed the order denying the section 388 petition, but raises no issues pertaining to the order in this appeal. The section 366.26 hearing was trailed to July 17, 2006, for a supplemental report on a matter unrelated to L.s and Jeremiahs case. Mother and her counsel were present on July 17, 2006. The matter was trailed for one day, to July 18, 2006, at 8:30 a.m., at the request of L.s and Jeremiahs attorney, who was sick. Mothers counsel did not advise the dependency court he had a scheduling conflict on July 18. Instead, mother objected to the recommendation her parental rights be terminated and counsel stated, I will make that objection again tomorrow . . . . Counsel confirmed that mother would not be in court for the hearing the next day because she did not want to pay for parking again. The dependency court stated that counsel could argue the next day.

On July 18, 2006, the case was called at 11:54 a.m. Counsel for mother did not appear. The dependency court stated: The mother was here yesterday. [Counsel] advised us and the mother that he would be lodging an objection to the court following the recommendations but did not wish to set the matter for a hearing. After reviewing all reports for the section 366.26 hearing, the dependency court found L. and Jeremiah adoptable and terminated parental rights.

DISCUSSION

The Appeal

In the appeal, mother contends that terminating her parental rights in the absence of her attorney both violated her statutory right to counsel and deprived her of a meaningful opportunity to be heard in violation of due process.^[5] We conclude any error was not prejudicial.

1.Right To Be Represented By Appointed Counsel

The dependency court must appoint competent counsel to represent indigent parents at the detention hearing and all subsequent proceedings, including the termination hearing. ( 317, subds. (b), (d), 317.5, subd. (a).)^[6] A dependency court deprives a parent of the statutory right to counsel by relieving appointed counsel upon the parents failure to appear at the termination hearing and proceeding to terminate parental rights. (In re Andrew S. (1994) 27 Cal.App.4th 541, 545-547.) Violations of the statutory right to counsel must be reviewed for prejudice under article VI, section 13 of the California Constitution.^[7](Ibid.) Thus, the parent must show there is a reasonable probability a more favorable result would have been achieved in the absence of the violation. (In re Celine R. (2003) 31 Cal.4th 45, 59-60 [the miscarriage of justice standard in Cal. Const., art. VI, 13 permit[s] reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [hereinafter, Watson].) We believe it appropriate to apply the same test in dependency matters . . . .].)

2. Right To An Opportunity To Be Heard

The right to due process of law guaranties that before depriving a parent of [his parental] interest, [the state] must afford him adequate notice and an opportunity to be heard. (In re B.G. (1974) 11 Cal.3d 679, 688-689.) Notice enables the party to choose whether to appear, acquiesce, or contest. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) Due process entitles a parent to a meaningful hearing, using a flexible balancing approach to determine what constitutes a meaningful hearing in a particular case. (In re Malinda S. (1990) 51 Cal.3d 368, 383-385.)

As mother received notice and chose not to contest the evidence or submit affirmative evidence, any defect in the procedure did not amount to a structural error requiring automatic reversal. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-311.) The Courts of Appeal have applied two different harmless error standards to due process violations in dependency cases. (Compare Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515 [in dependency cases, the clear and convincing standard of prejudice applies for due process violations]; In re Stacy T. (1997) 52 Cal.App.4th 1415, 1426-1427 [the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 applies to a due process violation, not the Watson standard].)

3. Any Error Was Harmless Under Every Standard of Harmless Error

Mother had notice of the termination hearing, knew the Department recommended termination of parental rights, chose not to submit evidence, and elected not to be present at the hearing. She had a statutory right to forego attending the hearing and to expect that her attorney would appear and represent her. ( 317, subd. (d).) To the extent mothers statutory right to counsel was violated because counsel failed to appear at the hearing, she must show a reasonable probability of a more favorable result had counsel represented her at the hearing, a burden she cannot meet on this record. Regarding mothers due process right to a hearing, counsel intended only to repeat mothers objection to the recommendation. Mothers counsel did not set the matter for a contested hearing and told the dependency court he would make an objection only, demonstrating that counsel intended to rely on the state of the record and not make a factual showing. Assuming the dependency courts decision to terminate parental rights without taking steps to secure counsels presence violated due process, the error was nonprejudicial under even the Chapmanstandard of review. There is simply no possibility the result in this case would have been more favorable had counsel been present.

Mothers contention of prejudicethat the result might have been different had counsel cross-examined the social worker, objected to the adequacy of the social workers reports,^[8]and introduced evidence that termination would be detrimental under the exception to termination in section 366.26, subdivision (c)(1)(A)is without merit. The record shows counsel had no intention of putting on evidence, conducting cross-examination, or introducing evidence. All counsel intended to do is lodge an objection to termination and present argument. Advocacy by counsel had no possibility of success, because nearly three years into the dependency proceedings, mother still lacked the ability to house and care for her children.

Section 366.26, subdivision (c) requires the dependency court to terminate parental rights if it is likely the child will be adopted, and termination for an adoptable child can only be derailed if the dependency court finds a compelling reason for finding termination would be detrimental.^[9] [T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The type of parent-child relationship that triggers the exception is a relationship which 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. . . . [Citation.] (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, 78 Cal.App.4th at pp. 1348-1350.)

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. [Citation.] A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child. [Citation.] It is designed to protect childrens compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.] (Id. at p. 49.) At this stage of the dependency proceedings, it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home. [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)

This record contains no exceptional circumstances that compellingly warrant finding termination would be detrimental. Mother had at most only weekly visits with L. and Jeremiah, who were thriving in their adult siblings home. L.s serious behavioral problems, developed during years of neglect and abuse in mothers care, were moderating in placement. Mother was not rehabilitated. The dependency courts ruling denying mothers section 388 petition established that L.s and Jeremiahs best interest required that mother not have custody. There was no evidence that L. and Jeremiah would benefit from continuing the parental relationship. L. and Jeremiah enjoyed visits with mother, but there was no evidence visits would not continue after parental rights were terminated, because L. and Jeremiah were going to be adopted within the family. No argument of counsel would have provided the dependency court with a compelling reason for finding that the benefits of maintaining the parental tie outweighed the well-being L. and Jeremiah would gain in an adoptive home.

The Habeas Corpus Petition

In her habeas corpus petition, mother contends the judgment should be reversed because counsel violated her statutory right to the effective assistance of counsel by failing to represent her at the termination hearing. [A] parent is entitled to raise a claim of ineffective assistance of counsel in connection with a parental rights termination order by habeas corpus petition filed concurrently with an appeal from the termination order. (In re Carrie M. (2001) 90 Cal.App.4th 530, 534.) This procedure is a vehicle for the parent to present evidence of the elements of her ineffective assistance of counsel claim that are outside the record. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136.) Mothers contention fails in this instance, however, because she cannot make a prima facie showing of prejudice.

A parent claiming ineffective assistance of counsel must show that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) The parent must also show prejudice. (Compare United States v. Cronic (1984) 466 U.S. 648 [right to counsel under the Sixth Amendment].) [T]he parent must demonstrate that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.] (In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) In a dependency case, [i]n order to show prejudice[,] it [is also] necessary to show that a different result would obtain were the section 366.26 judgment reversed and a new hearing ordered. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) [I]n order to determine prejudice (i.e., that the case would now yield a different result from that of the first hearing) the Court of Appeal must have evidence of the childs current status. It must know what has happened to the child since the hearing that is being reversed. Has the child been placed with its adopting parents? Is the child doing well? Has the child bonded to new foster-adoptive parents? (Id. at p. 245.) If a prima facie showing is made, the determination of the merits of whether prejudice occurred is most appropriately addressed in the trial court if the habeas corpus petition is granted. (In re Kristin H., supra, 46 Cal.App.4th at p. 1672.)

In this instance, mother uses the habeas procedure to fill in the record gap regarding why counsel failed to appear at the scheduled hearing. Mothers trial counsel states in his declaration that he was working in the department next door and did not go to the courtroom until just prior to lunchtime. That was too late, as the case had already been called and parental rights terminated. Counsel does not state he made any effort to coordinate his schedules in the two departments or contact the courtroom to advise he would be late.

Counsel failed to act in a manner to be expected of a reasonably competent attorney practicing in the field of juvenile dependency law by not contacting the court in a timely fashion and failing to appear for a scheduled hearing. However, the habeas corpus petition must be denied, because mother fails to make a prima facie showing that it is reasonably probable parental rights would not have been terminated had counsel represented her at the hearing. Mother submitted no evidence concerning what counsel would have done at the hearing, the exception to termination in section 366.26, subdivision (c)(1)(A), or the childrens current circumstances. Exactly as she did in the appeal, she relies on the appellate record to argue that parental rights would not have been terminated had counsel represented her at the hearing. This argument was rejected in mothers appeal; it carries no greater weight in this habeas corpus petition.^[10]

Mother has not met her burden of establishing a prima facie case that a more favorable result would have been reached had counsel represented her at the hearing or that a new hearing would yield a different result.

DISPOSITION

The orders are affirmed. The petition for writ of habeas corpus is denied.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

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

^[2] Nathan G. is L.s and Jeremiahs alleged father. He did not appeal.

^[3] Mother abandoned a fifth minor sibling, Richard. The oldest sibling was an adult.

^[4] Father had had no contact with L. and Jeremiah.

^[5] Having waived her appearance, mother did not attend the termination hearing. A dependency court may proceed in a parents absence. (In re Nalani C. (1988) 199 Cal.App.3d 1017, 1025, fn. 6; see also In re Dolly D. (1995) 41 Cal.App.4th 440, 445 [a parent who is represented by an attorney need not personally appear in order for the attorney to proceed on his or her behalf].)

^[6] Section 317, subdivision (b) provides: When it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section. Section 317, subdivision (d) provides:  The counsel appointed by the court shall represent the parent . . . at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent . . . unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent . . . in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship. Section 317.5, subdivision (a) provides, [a]ll parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.

^[7] No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.)

^[8] We will address the contention concerning the adequacy of the reports below, in the discussion of mothers habeas petition.

^[9] Under section 366.26, subdivision (c)(1)(A), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [] . . . maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The parent has the burden to prove the applicability of the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

^[10] To the extent mother contends the result would have been different because counsel would have lodged an objection to the sufficiency of the social workers reports, counsel does not state in his declaration he would have objected to the reports. Mother does not identify the insufficiencies, and mother does not show how an objection would have led to a more favorable result.