Opinion
E068485
01-10-2018
In re E.R., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J260550) OPINION APPEAL from the Superior Court of San Bernardino County. John W. Parker, Judge. (Retired judge of the San Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
This case concerns defendant and appellant, D.M. (father), and his teenage daughter, E.R., who was 13 years old when this case began in May 2015. In April 2017, the juvenile court appointed legal guardians for E.R. and terminated dependency jurisdiction. Father appeals from this order and raises only one argument: his counsel was ineffective because she failed to request presumed father status. We affirm. Father fails to establish counsel's performance was deficient or that her performance prejudiced him.
II. FACTS AND PROCEDURE
In May 2015, plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a referral alleging A.R. (mother) had just been released from a rehabilitation program and was mixing alcohol and medications. Mother reportedly drove E.R. and her friend while intoxicated. While mother managed to drop E.R. at home safely, she left again and crashed her car. E.R. reported mother drank alcohol at least every other day and, most days, she was "passed out" when E.R. came home from school. E.R. was cutting herself. She was scared to leave mother alone while she went to school and worried mother was going to kill someone driving under the influence. Mother and E.R. lived with maternal great-grandmother. Maternal great-grandmother provided for E.R., but she became defensive when E.R. tried to talk about her concerns over mother. Thirteen-year-old E.R. had last spoken to father on her twelfth birthday.
Mother admitted to drinking alcohol daily for three years, but said she was now drinking wine and sherry instead of hard liquor. She did not deny having an alcohol abuse problem. She was taking medications for anxiety and to treat alcohol cravings. Mother had been to detox programs six times.
Mother ended her relationship with father approximately three months before E.R.'s birth. She left him because he was using cocaine. Father and mother were never married, and father had not paid child support and had not cared for E.R. He called E.R. sporadically and had last seen her approximately six or seven years ago.
Mother agreed to leave maternal great-grandmother's home for the time being so that E.R. could remain in the home. CFS filed a petition alleging mother had alcohol and substance abuse problems and drove with E.R. while under the influence of alcohol (Welf. & Inst. Code, § 300, subd. (b)); mother suffered from mental health issues (ibid.); father knew or reasonably should have known E.R. was at risk of abuse and neglect by mother (ibid.); father had his own substance abuse problem (ibid.); and father's whereabouts and his ability to care for E.R. were unknown (id., subd. (g)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court found a prima facie case for detaining E.R. At the detention hearing, mother said father was the only potential father of E.R. He was present at the hospital when E.R. was born. When the court asked whether he had signed a voluntary declaration of paternity, mother replied: "I believe so." Mother said he was listed on E.R.'s birth certificate as her father and acknowledged her as his child. But the parents and E.R. never lived together as a family.
CFS opined in the jurisdictional/dispositional report that father was "a mere biological father, not entitled to services," because he had only sporadic contact for the first six years of E.R.'s life and no contact at all for the last six years. CFS filed a declaration of due diligence showing it had found five possible addresses for father. On June 4, 2015, CFS sent father notice of the June 23, 2015, jurisdictional/dispositional hearing at each of the five addresses. Father later confirmed that one of those addresses was his mailing address.
Still, father did not appear at the jurisdictional/dispositional hearing. The court found the allegations of the petition to be true, with minor modifications. The court also found father to be the alleged father of E.R. and not entitled to reunification services, but ordered reunification services for mother. E.R. was to remain placed with maternal great-grandmother.
Five months after the jurisdictional/dispositional hearing, CFS reported E.R. had hit maternal great-grandmother multiple times and was refusing to eat or attend school. Maternal great-grandmother had also permitted mother to stay at the home overnight and on the weekends, contrary to the court's orders. CFS moved E.R. to a group home and filed a supplemental petition for more restrictive placement. The court found a prima facie case for detaining E.R. and removing her from maternal great-grandmother's home under the supplemental petition.
"An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition." (§ 387, subd. (a).)
Father contacted CFS just before the six-month review hearing in December 2015 and requested reunification services. He made his first appearance at the six-month review hearing, which was also the jurisdictional/dispositional hearing on the supplemental petition. The court found true the allegation of the supplemental petition that the previous disposition had not been effective in protecting E.R. As to the six-month review, father's counsel requested a continuance of the hearing. She requested a paternity test and stated: "Father says and acknowledges that he is the father of this child, is willing to take a DNA test to show that he is the biological father. He is willing to fight for presumed father status and acknowledge that he wants rights over—he wants to do what's best for his daughter. So we will ask for a paternity test as well." The court ordered paternity testing but declined to continue the six-month review hearing. The court explained that if father wanted to elevate his status above alleged father, he should file a section 388 petition. The court declined to order referrals for parenting and counseling until he had filed a section 388 petition, but it granted father supervised visits twice per month for one hour, upon confirmation of paternity by the testing. The court gave father notice of the 12-month review hearing, which it scheduled for June 2016.
Section 388 provides, in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made . . . ." (§ 388, subd. (a)(1).)
CFS sent father paternity testing paperwork on March 8, 2016. In the June 2016, 12-month review report, CFS reported the lab had not received a sample from father. Thus, the lab had not completed paternity testing. E.R. reported father had moved to Oklahoma. She had tried to contact him several times with no success. She wanted to see him and wondered "if she was the reason why he moved to Oklahoma." CFS thought father "presented as if he wanted to have a relationship with the child but he failed to submit to a paternity test. . . . [T]his demonstrate[d] lack of commitment to the child." Father had not made any attempts to contact CFS, despite the social worker's efforts to contact him. As to mother, she had not consistently participated in reunification services, and CFS recommended terminating her services.
CFS requested permission to move E.R. from the group home to the home of her maternal cousins in Pacifica, California. The maternal cousins were committed to a permanent placement if reunification did not occur, and E.R. expressed "high interest" in being placed with the maternal cousins. The maternal cousins had flown from Northern California to visit E.R. multiple times. The group home staff reported E.R. was doing well and was ready for a lower level of care.
Father's counsel but not father appeared at the 12-month review hearing. The court terminated mother's reunification services and authorized CFS to place E.R. with the maternal cousins. The court also found a compelling reason existed for determining it was not in E.R.'s best interest to set a selection and implementation hearing (§ 366.26), and it ordered a planned permanent living arrangement with the maternal cousins, with the specific goal of a legal guardianship. It scheduled a permanent plan review hearing for December 2016.
By December 2016, E.R. was adjusting well in the maternal cousins' home and said she was happy there. Both she and the maternal cousins wanted to pursue a legal guardianship. Father appeared at the permanent plan review hearing. He submitted to the plan of a legal guardianship and the setting of a section 366.26 hearing. The court found that the previously ordered planned permanent living arrangement was no longer appropriate and set a section 366.26 hearing for April 2017. It expressly gave notice to father that it would be considering a legal guardianship at the next hearing. It also advised father of his writ rights on the record. The court granted father supervised visitation in this jurisdiction and supervised telephone contact, as appropriate.
In the section 366.26 report, CFS indicated E.R. was "not ready" for visits or phone calls with father, and so visitation had not occurred. E.R. had been living with the maternal cousins for approximately nine months. E.R. was in high school and had excellent grades and attendance. The maternal cousins were committed to becoming legal guardians to provide E.R. with a sense of permanency. They had a relationship of mutual respect with mother and father and were committed to ensuring contact between them and E.R. so long as visits were not detrimental to E.R.
Again, father did not appear with counsel at the section 366.26 hearing. Father's counsel "object[ed] for the record without affirmative evidence." The court ordered a permanent plan of legal guardianship and appointed the maternal cousins as E.R.'s legal guardians. It granted mother visits supervised by the guardians once every two months for four hours. It granted father visits once per month for one hour, also supervised by the guardians, but ordered that E.R. would not be forced to visit with father against her will. The court dismissed the petition and terminated dependency jurisdiction. Father filed a notice of appeal from the order appointing the maternal cousins as legal guardians.
III. DISCUSSION
Father seeks to unwind the appointment of legal guardians and the termination of dependency jurisdiction based on his counsel's failure to elevate his status to presumed father. CFS argues he forfeited this argument by waiting until now to raise it.
There is some merit to CFS's position. Father is not arguing the court erred in selecting a legal guardianship as the permanent plan. The crux of his argument is that the court erred in declaring him an alleged father not entitled to reunification services, and this error was the result of counsel's ineffective assistance. Yet father received notice of the jurisdictional/dispositional hearing, did not appear, and did not appeal from the dispositional order in which the court declared him an alleged father. (In re T.G. (2010) 188 Cal.App.4th 687, 692 [the dispositional order in a dependency proceeding is a final appealable judgment].) Nor did he appeal from subsequent orders at the six- and 12-month review hearings, or file a writ petition after the court set a section 366.26 hearing, even though it was apparent he was not receiving reunification services and the matter was heading toward a legal guardianship. (In re T.G., supra, at p. 692 [the parties may appeal any order after the dispositional order as an order after judgment, except an order setting a selection and implementation hearing]; § 366.26, subd. (l) [the parties must seek statutory writ review of an order setting a selection and implementation hearing].) Indeed, instead of seeking review at this critical point, he submitted to a legal guardianship and the setting of a section 366.26 hearing.
We will assume without deciding that father has not forfeited his challenge. Even so, his argument is meritless. To prevail on an ineffective assistance of counsel claim, father must show (1) that "'counsel's representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms,'" and (2) that this resulted in prejudice, "that is, '[a] reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) Father's showing on both prongs is insufficient. A. No Showing Counsel's Performance Was Deficient
"The establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. It is of course possible that the incompetency of counsel will be so gross as to jump out of the record and require no supplemental explanation. Such is not the usual case, however. Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. It is for this reason that writ review of claims of ineffective assistance of counsel is the preferred review procedure. Evidence of the reasons for counsel's 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 petition for writ of habeas corpus. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243; accord, In re Darlice C. (2003) 105 Cal.App.4th 459, 463 [concluding the proper way to raise an ineffective assistance of counsel claim is by writ of habeas corpus].)
Parties bringing an ineffective assistance claim on direct appeal put themselves at a disadvantage in that they are limited to the record developed below. "We cannot assume that [counsel's] decision was the result of negligence, when it could well have been based upon some practical or tactical decision governed by client guidance." (In re Arturo A., supra, 8 Cal.App.4th at p. 243.) If the record sheds no light on why counsel acted in the manner challenged, we must reject the claim of deficient performance, unless counsel was asked for an explanation and failed to provide it, or unless there simply could be no satisfactory explanation for counsel's actions. (People v. Ledesma (2006) 39 Cal.4th 641, 747; In re Darlice C., supra, 105 Cal.App.4th at p. 463.)
Here, the record contains no direct evidence of the reasons for counsel's failure to formally request a change to presumed father status, but it does not automatically follow that counsel's performance was deficient. There could have been a satisfactory explanation for her actions.
Under the Family Code, a man may achieve presumed father status in a dependency proceeding by signing a voluntary declaration of paternity at his child's birth. (Fam. Code, §§ 7611, 7571, subd. (a), 7573; In re Liam L. (2000) 84 Cal.App.4th 739, 746-747.) After an unmarried mother gives birth, the person responsible for registering live births at the hospital must provide the voluntary declaration of paternity to the mother and any man identified as the natural father. (Fam. Code, § 7571, subd. (a).) Hospital staff shall witness the signatures of the parents signing the declaration and shall forward the declaration to the Department of Child Support Services (DCSS) within 20 days. (Ibid.) A completed declaration filed with DCSS establishes the paternity of the child the same as a court judgment for paternity. (Fam. Code, § 7573.)
In the case of unmarried parents, a father's name shall not be listed on the child's birth certificate unless he and the mother signed a voluntary declaration of paternity at the hospital. (Health & Saf. Code, § 102425, subd. (a)(4)(C).) When the father's name appears on the birth certificate, a presumption arises that hospital staff forwarded the voluntary declaration of paternity to DCSS, as the law required it to do. (In re Raphael P. (2002) 97 Cal.App.4th 716, 738, citing Evid. Code, § 664.)
Father argues he was entitled to presumed father status because his name appeared on E.R.'s birth certificate. This, he contends, gave rise to a presumption that he had signed a voluntary declaration of paternity, which the hospital must have forwarded to DCSS, thereby establishing him as a presumed father. He concludes there could be no satisfactory explanation for counsel's failure to elevate his status based on the birth certificate, and her request instead for a paternity test. We disagree. Although mother said father was listed on E.R.'s birth certificate, the birth certificate does not appear in the record. It is possible mother was mistaken and that was the reason counsel sought to claim reunification services through alternate means—proof of biological paternity. If the paternity test had shown father is E.R.'s biological father, the court would have had discretion to order reunification services. (§ 361.5, subd. (a) [the juvenile court may order family reunification services for a biological father "if the court determines that the services will benefit the child."].) It is also possible counsel may have believed mother's hearsay statement as to what was on the birth certificate would not be sufficient proof of the fact in issue, in the absence of the certificate itself, for the court to make such an important determination. The burden is on father to establish counsel's performance was deficient, and we cannot assume her decision to ask for a paternity test was negligent, when it could have been based on legitimate considerations. (In re Arturo A., supra, 8 Cal.App.4th at p. 243.) Our conclusion might be different if father had filed a petition for writ of habeas corpus and proffered E.R.'s birth certificate or a voluntary declaration of paternity. As the record stands, however, he has failed to carry his burden.
In re O.S. (2002) 102 Cal.App.4th 1402, on which father relies, brings into focus the insufficiency of father's showing. The father in that case filed a petition for writ of habeas corpus and proffered evidence that his counsel failed to return his many calls from the time that the court appointed counsel to the section 366.26 hearing three months later. (In re O.S., supra, at pp. 1405, 1411.) Counsel admitted she received his messages and decided not to return his calls, deciding instead to speak to him the morning of the section 366.26 hearing. (In re O.S., supra, at p. 1411.) Yet she did not appear at the hearing, where another attorney specially appeared on her behalf. (Ibid.) At the hearing, the court denied the father's request for a continuance and a paternity test and terminated his parental rights. (Id. at pp. 1405-1406.) On this record, the appellate court held counsel acted incompetently because she did not communicate with her client and learn his desires about paternity so that she could take steps to establish his paternity in a timely manner. (Id. at pp. 1410-1411.) Thus, unlike our case, the father in In re O.S. was able to present evidence through his writ petition that explained his counsel's failure to act—she simply chose not to return his calls. Here, we have no such evidence and cannot conclude there was no satisfactory explanation for counsel's actions. B. No Showing of Prejudice
Father contends he would have been entitled to reunification services and custody of E.R., if counsel had requested presumed father status. (In re E.T. (2013) 217 Cal.App.4th 426, 437 [only a presumed father has a right to (1) reunification services and (2) custody, unless placement with the presumed father would be detrimental to the child's welfare].) Assuming counsel had established presumed father status, it is not reasonably probable the result of these proceedings would have been different. Father had not seen E.R. for six to seven years and only occasionally called her. He did not make his first appearance in this matter until the six-month review hearing held in December 2015. Just prior to that hearing, father had contacted CFS but did not request custody of E.R., only reunification services. At that hearing, the court ordered paternity testing, which could have established him as a biological father and given the court discretion to grant him reunification services. The court did grant him visitation—an essential component of any reunification plan (In re Alvin R. (2003) 108 Cal.App.4th 962, 972)—contingent on the test confirming paternity. Yet he failed to show up for paternity testing, and he failed to appear at the 12-month review hearing. The 12-month review report indicated E.R. had tried to contact father several times without success. His lack of commitment clearly caused E.R. distress to the point where she indicated in the section 366.26 report that she was "not ready to have visits or phone calls with her father." CFS concluded father's failure to submit to the paternity test and obtain visitation demonstrated a "lack of commitment to the child." When father did appear at the permanent plan review hearing, he submitted to a legal guardianship with the maternal cousins.
Father gave every indication that he was not actually committed to reunification services, despite requesting them initially. We do not see how granting him reunification services at the six-month review hearing would have resulted in an outcome better than legal guardianship with the maternal cousins, where the guardians were open to facilitating visits with father, and the court ordered visitation with E.R., so long as she wished it. Clearly, it was in E.R.'s best interests to be placed with her maternal cousins. Thus, even if we were inclined to conclude counsel's performance was deficient, father has failed to establish prejudice.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. SLOUGH
J.