Opinion
B194668
4-24-2007
In re SAVANA R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TAMARA S., Defendant and Appellant.
Nancy O. Flores, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
In this juvenile court dependency case (Welf. & Inst. Code, §300 et seq.), Tamara S., the mother of the subject minor child, Savana R. (Mother and Savana, respectively), appeals from an order that terminated her parental rights to the minor. Savana (born July 8, 2005), was 15 months old when the termination order was made.
Unless otherwise indicated, references in this opinion are to the Welfare and Institutions Code.
Mother raises several issues in this appeal. However, we have no jurisdiction to entertain them because Mother did not comply with the statutory requirement that she raise those issues by means of a petition for extraordinary writ. (§ 366.26, subd. (l).) Therefore, we will dismiss Mothers appeal.
BACKGROUND OF THE CASE
1. Initiation of the Case
a. The Section 300 Petition
The section 300 petition was filed by the Los Angeles County Department of Children and Family Services (the Department) on December 9, 2005, when Savana was five months old. The sustained petition alleges the following. The current whereabouts of Mother and the minor were unknown at that time. Mother has a three-year history of drug abuse and was a current user of marijuana, and prior services by the Department failed in that Mother failed to complete a substance abuse rehabilitation program with random drug testing. The minors two siblings were previously dependents of the juvenile court because of Mothers substance abuse and because of Mothers failure to feed of one of the siblings and her physical abuse of that child. The siblings were placed with their father and jurisdiction was terminated.
b. The Detention Report
The Departments detention report shows that Mothers two other children were involved with the Department first in a voluntary family maintenance setting beginning in March 2003, and then pursuant to a section 300 petition filed later in 2003. The report states Savana came to the attention of the Department in late July 2005 when it received child abuse referrals on July 29 and 31 alleging Savana was being neglected by Mother due to Mothers drug use. Over the course of the next few months, the Department was able to make contact with Mother from time to time and Savana appeared to be doing well. Mother reported she was living in Tujunga.
In August and September 2005 a Department social worker spoke with a case manager at the "Choices" drug treatment program in Pasadena regarding Mother. The case manager reported Mother had been attending the program since April or May 2005, was drug testing clean each week, and Savana was born negative to drugs. In early October 2005, the social worker went to Mothers home to have Mother sign a voluntary family maintenance that Mother had agreed to sign, but when presented with it, Mother stated she wanted an attorney to review it first. By late October, Mother stated she had not yet spoken with an attorney. She also said she had changed residences, and was now living in Van Nuys, but would not give the new address to the social worker. Mother stated the owners of the residence where she was living did not want Department involvement.
On November 2, the case manager at Choices stated Mother had not been involved in the program for about a month, supposedly because of transportation issues. On November 3, the social worker was able to visit with Mother, although not at Mothers home, and told Mother she needed to drug test since she was not in the drug treatment program. Mother tested negative on November 4.
On December 1, the social worker met with her supervisor and it was suggested that a non-detained petition be filed because of Mothers "very serious history" and the Departments "current inability to verify the mothers care of the four-month-old child." The social worker made four calls to Mothers cell phone in early December because it was the only way to reach Mother. She left messages for Mother the first three calls but Mother did not return the calls, and the fourth call revealed the cell number was no longer working. Because of the Departments inability to make contact with Mother and determine Savanas well being, it was decided to file the section 300 petition, and detain the minor when the minor could be found.
2. Dependency Court Hearings and Subsequently Filed Petitions
a. The Detention Hearing
A detention hearing was held on December 9, 2005. Neither Savana nor Mother was present at the hearing. The trial court issued a protective custody warrant for Savana and an arrest warrant for Mother, with bail set at $50,000. Counsel was not appointed for Mother at that time but counsel was appointed for the minor. The minors father was determined to be unknown. The court found a prima facie case for detaining the minor and for finding she is a person described by section 300. The court ordered temporary custody of Savana be vested in the Department, ordered the minor detained in shelter care, and ordered she not be placed in a home where the foster parents were not willing to adopt her. Family reunification services and monitored visits were ordered. A pretrial resolution conference was set for January 19, 2006.
b. The Pretrial Resolution Conference
On January 13, 2006, a Department investigator, together with members of the Los Angeles Police Department, made visits to two residences in Tujunga looking for Mother and Savana but were not successful, although baby supplies were found at one of the locations. The paternal grandmother of Mothers two older children had informed the Department that Mother was at one of the residences.
At the January 19, 2006 pretrial resolution conference, one Jeff R. appeared and was deemed to be Savanas presumed father (Father). Counsel was appointed for him. He denied the petition. The maternal grandfather was present but Mother and Savana were not. The warrants previously issued for Savana and Mother were ordered to remain in full force and effect. The court continued Savanas detention in shelter care (as it did at subsequent hearings), and ordered that Father not remove Savana from the seven contiguous Southern California counties, the State of California and the United States. The Department was ordered to present evidence of due diligence in attempting to locate Mother. The pretrial resolution conference was continued to February 8.
On February 8, Father and the maternal grandfather were present, Mother and Savana were not. The court ordered the warrants remain in full force and effect. The petition was adjudicated and the court sustained (under subdivisions (b) and (j) of section 300), the allegations in the petition. The case was continued to March 8 for disposition.
c. Mothers First Appearance
A Department report states that pursuant to a tip, on February 23 Mother was found to be at a home in Tujunga and was taken into custody. However, Savanas whereabouts remained unknown. The person making the tip stated Mother was around heroin addicts, was using heroin with a maternal grandfather, and was doing so when she had the minor child with her.
Mother appeared in court on February 24 and counsel was appointed for her. She had been transported to court by the Los Angeles County Sheriffs Department. Mother testified Savana was currently in Provo, Utah, with the minors maternal grandmother (MGM), and had been there about a week. Mother stated she and the minor had been in Utah three times in the previous five months. Mother gave the court the MGMs name and telephone number, and stated she thought the MGM was coming to Los Angeles but did not know when. Mother stated the minors maternal grandfather (MGF) lives in Tujunga, California, and she gave the court the MGFs telephone number. The court ordered the warrants to remain in full force and effect. A warrant hearing was set for February 27. The court continued its order that Savana be detained in shelter care. The disposition hearing remained set for March 8.
Curiously, in a report filed by the Department on January 3, 2006, the following is stated: "In 2002, [M]other . . . returned from living in the state of Utah due to her mothers illness and untimely death."
d. Further Attempts by the Department to Locate Savana
A Department investigator contacted the MGM on February 24 and was told the minor was with the MGM and the MGM would transport the minor back to California. However two hours later, the investigator was told by the MGM that the MGM would not bring the minor back to California. The MGM stated Mother had signed over her parental rights to the MGM and the MGM was therefore the childs legal guardian. The Department investigator contacted Utah Children Protective Services and an emergency response social worker agreed to remove the minor from the MGM pending the Department coming to Utah to take the child. Later that day, the Utah social worker informed the Department that the minor was not found at the MGMs home, which was reported to be a one bedroom "shack" with marginal living standards, and that the MGM was well known to law enforcement in the area due to her involvement with drug and other criminal activity. The responding law enforcement official stated it did not appear that the minor was being cared for by the MGM as there were no signs of a babys presence. The MGM informed the Utah social worker the minor was actually being cared for by Father at an address in Sunland, California, and the MGM stated Mothers and Fathers families would hide the minor, and the MGM would bring the minor to court on February 27 to ensure Mothers release from jail. The MGM was determined to have an extensive criminal history in California and an extensive referral history in Utah, which was perhaps due to involvement with her grandchildren.
By the time of the February 27 warrant hearing, the whereabouts of the minor remained unknown. Mother appeared at the hearing and testified. She stated she did not know where the minor was. The warrants were ordered to remain in full force and effect and the Department ordered to continue trying to locate the minor. The matter was continued to February 28. Also on February 27, the Department obtained a phone number for the MGF and when the number was called, a man answered and refused to identify himself. In the background, a baby was heard crying, dogs were barking, and a woman was telling the unidentified man to hand up the phone. An officer from the Los Angeles Police Department arrived at the MGFs residence ten minutes later but no baby was found. The floors of the home were covered with clutter and animal feces. Mothers sister informed the Department that family members would not disclose the location of the minor. The Department contacted Father who indicated he did not know where the minor was.
At the February 28 warrant hearing, Mother appeared. The court referred the matter to the child abduction unit and district attorneys office, with Mother, Father, and the maternal grandparents all to be included in the referral. The warrant hearing was continued to March 1.
It appears that the referrals to the child abduction unit and district attorneys office had a motivating effect on at least Father because on March 1, he appeared in court with Savana. The warrants were recalled. The hearing was continued to March 8 for pre-release investigation and disposition hearings.
e. The Departments Section 342 Petition
On March 8 the Department filed an amended section 300 petition, which the court deemed to be a section 342 petition. The petition contains the already sustained allegations from the original petition, and the following new allegations. Father has a criminal history of drug possession and being under the influence of a controlled substance. Because of Fathers substance abuse problems, Savanas two siblings (not the siblings mentioned above), were prior dependents of the juvenile court. Father failed to comply with prior court orders regarding counseling and substance abuse treatment, he failed to reunify with these siblings, the siblings received permanent planning services because of Fathers substance abuse problems, and Fathers parental rights were terminated to one of the siblings. On or about December 9, 2005, Mother willfully abducted Savana and fled to an unspecified location in violation of juvenile court orders. Mother was arrested on February 23, 2006 because of a violent physical altercation with Father and she was found to be under the influence of methamphetamine. Mother refused to reveal the whereabouts of the minor to the dependency court and Father continued to harbor the minor in an unspecified location, in violation of the courts orders.
f. Adjudication and Disposition Hearing, and Setting of a Section 366.26 Hearing
Mother and Father appeared at the March 8 pre-release investigation and disposition hearing and denied the section 342 petition. The Department was ordered to evaluate Fathers home. The case was continued to April 5 for a disposition hearing on the original (sustained) petition and a pretrial resolution conference on the section 342 petition. Mother was interviewed by the social worker prior to the hearing and she stated she took Savana to Utah because she missed the MGM, they were in Utah for "for about a week," she (Mother) was not aware that she was "supposed to give Savana up" and she did not think she was "violating anything" by going to visit the MGM. Both she and Father denied there was a violent altercation between them on February 23, 2006. Mother stated she was arrested on that date because of an outstanding warrant on her.
On April 5 the case was continued to May 16 for a contested hearing on adjudication of the section 342 petition and disposition on both the original (§ 300) petition and the section 342 petition.
Both parents appeared on May 16. The court adjudicated the section 342 petition. The reporters transcript for the hearing shows that the court stated the section 342 petition "has been significantly changed," and the minute order for May 16 states the petition was "ordered amended by interlineation as reflected on its face." However, none of the allegations in the section 342 petition that appears in the record was amended by interlineation. The court sustained some of the allegations in the section 342 petition, dismissed others, and held a disposition hearing. It found Savana is a dependent child and took custody from the parents, made a case plan for the parents, denied reunification services at that time, and continued the minor in her placement. A section 366.26 hearing was set for September 12.
On May 23, the parents each filed a notice of intent to file a writ petition. (§ 366.26, subd. (l).) The filings were made by the parents themselves, not by their respective appointed attorneys. The reporters transcript for a hearing held on October 25, 2006 shows the record was prepared for the writ petitions. However, no writ petitions were ever filed.
g. Mothers Section 388 Petition, the Section 366.26 Hearing, and Mothers Appeal
The Departments report for the September 12 section 366.26 hearing states Savana was very bonded to her foster parents, with whom she had been living since she was detained, they desired to adopt her, and it was highly likely the minor would be adopted if parental rights were terminated. Mother was going through periods where she would keep her scheduled visits with the minor, albeit ten to 15 minutes late, and periods when she did not keep her scheduled visits, sometimes calling the social worker to say her alarm or her car did not work. Savana would cry when the visits began, refuse to go to Mother, and appear to have a difficult time adjusting to the transition. Visits were for one hour and were monitored. Most visits took place at the Departments office, although sometimes the visits were at a residential treatment facility at which Mother enrolled on June 13, 2006 and from which Mother was discharged on July 27, 2006. She was discharged because she had a very difficult time following directions, had been given many warnings, and fought with other residents. Mother was currently enrolled in Choices in Pasadena, where she had previously received treatment. The social worker was informed by a counselor at Choices that Mother was discharged from her original enrollment because she was testing dirty and not following directions. Fathers whereabouts were unknown.
On September 12 Mother appeared. The section 366.26 hearing was continued to October 24, 2006 for a contest.
On September 7, Mother filed a section 388 petition, seeking a home of parent order to have Savana placed with her, reunification services, unmonitored visitation, and overnight visitation. The court set a hearing on the petition for October 24, the same day as the contested section 366.26 hearing.
The case was trailed from October 24 to the following day. Mother appeared on October 25. The court denied her section 388 petition and terminated the parents parental rights. The permanent plan is adoption.
Mother filed a notice of appeal on October 26.
CONTENTIONS ON APPEAL
In this appeal, Mother contends she was denied due process when the dependency court conducted hearings in her absence without appointing an attorney for her. She asserts this rendered those hearings, and the subsequent hearings, fundamentally unfair.
Mother also contends the trial court erred when it adjudicated the original petition before she and Savana had appeared.
Additionally, Mother asserts there was insufficient evidence to support filing the petitions and sustaining the allegations in the petitions. She also contends she did not abduct Savana in violation of a court order. Lastly, she asserts her attorney failed to file a writ petition after she (Mother) filed the notice of intent to file a writ petition.
DISCUSSION
We find no merit to Mothers assertion she was denied due process when the trial court did not appoint counsel for her at the hearings at which she was not present. Section 317 provides that "[w]hen it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided for in this section." (§ 317, subd. (a).) Mother was not present in court for the first three hearings, and absent evidence that the court had some means (other than her presence) of determining whether she desired an attorney and whether she was able to afford one, we will not find that the trial court erred in not appointing counsel for her for the hearings at which she was not present. A dependency court is not required to appoint counsel for an indigent parent absent an indication from the parent that she desires the appointment. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1083.) Additionally, we observe that Mothers appointed attorney did not find it necessary, when he accepted the appointment, to challenge orders made at the initial hearings, by filing a section 388 petition or petitioning this court for writ relief from such orders.
Moreover, irrespective of the merit of Mothers due process argument, the issue of appointment of counsel could and should have been raised in this court at an earlier time. An appeal from the most recent order in a dependency case (here, Mothers appeal from the October 25, 2006 order terminating her parental rights), may not challenge prior orders when the time for appealing from such prior orders has passed. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) In a dependency case, the first appealable order is the disposition order, and challenges to that order (and to prior orders) are taken by an appeal from the disposition order. Here, the disposition order was made on May 16. By the time Mother filed her appeal on October 26, the time for challenging the disposition order, and the orders made before the disposition order, had long since passed.
We note that technically, the setting of the section 366.26 hearing by the court on May 16 required Mother to use a petition for extraordinary writ, rather than an appeal, if she desired to seek relief from any or all of the orders made by the dependency court on or prior to May 16. (§ 366.26, subd. (l); In re Tabitha W. (2006) 143 Cal.App.4th 811, 817; In re Merrick V. (2004) 122 Cal.App.4th 235, 247-248.) Although on May 23 she did file notice of her intent to file such a petition, and although the reporters transcript for the hearing held on October 25 shows the record was prepared for the writ petitions, no petition was ultimately filed by Mother or her trial court attorney. Her attorney had no obligation to file a petition if he did not believe the petition would have merit; indeed, attorneys have an obligation to not file proceedings that have no merit. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 582-584.) Nothing in the record indicates Mother inquired of her attorney, after Mother herself filed a notice of intent to file a writ petition, whether she (Mother) should file a writ petition or whether her attorney intended to file one.
Moreover, Mothers claim of ineffective assistance of counsel, which she bases on her trial court attorneys not having filed a section 366.26, subdivision (l) writ petition after the court set the section 366.26 hearing, is ineffective itself. It would be improper for us to assume that the attorneys not filing the writ petition was the result of his negligence. It could have been the result of some practical or tactical decision. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) It is for that reason that reviewing courts prefer that claims, by appellate counsel, of ineffective assistance of counsel in the trial court be examined by means of a writ petition brought for that very purpose. In a writ procedure, evidence of an attorneys reasons for his or her tactics in the trial court, and evidence of the standard of legal practice in the community regarding such tactics, can be presented to the reviewing court by declarations and other evidence. (Ibid.) Here, we do not have such evidence.
Because there was no writ petition filed from the order setting the section 366.26 hearing, and because the issues Mother raises in this appeal could have been raised in such a writ petition, Mother is not entitled to review of those issues by means of this appeal. Instead, her appeal must be dismissed. (In re Tabitha W., supra, 143 Cal.App.4th at p. 817, 818.)
DISPOSITION
The appeal is dismissed.
We concur:
KLEIN, P. J.
ALDRICH, J.