Opinion
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robert J. Anspach, Judge, Super. Ct. No. JD109523.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Kane, J.
Michelle R. Trujillo, for Petitioner.
No appearance for Respondent.
B.C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Real Party In Interest.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing as to his son A. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In February 2006, newborn A. was taken into protective custody by the social services department (department) because of his mother Marisa’s drug use. At the time, Marisa was receiving reunification services for A.’s half-siblings, then three-year-old M.G. and two-year-old A.G., who were removed from her custody in January 2005 and placed with their paternal grandmother, Matilde. M.G. and A.G.’s presumed father, Manuel, was also receiving reunification services.
Petitioner, who Marisa identified as A.’s father, was serving a 16-month prison sentence for possessing a firearm. Marisa said they had never been a couple and he denied being A.’s father. She stated none of her relatives were suitable for placement and provided contact information for petitioner’s mother, Sally.
The department filed an original dependency petition on A.’s behalf and identified petitioner as A.’s alleged father. The juvenile court ordered A. detained and appointed the attorney representing Manuel to also represent petitioner. In mid-February 2006, the department placed A. with Matilde and his half-siblings.
Over the next several months, petitioner and Manuel’s counsel (fathers’ counsel) represented petitioner at the jurisdictional hearing and Manuel at the 12-month review of dependency hearing. The juvenile court adjudged A. a dependent of the court after Marisa submitted on jurisdiction and continued reunification services for Manuel. The court also ordered petitioner to submit to paternity testing and continued the dispositional hearing pending the results.
Paternity testing completed in May established petitioner’s biological paternity by a 99.99 percent probability. Just several weeks prior, Sally submitted a Relative Assessment application for placement of A. However, her case was closed in June 2006 after the social worker made several failed attempts to get in contact with her.
In late May 2006, fathers’ counsel represented petitioner and Manuel at a combined dispositional hearing as to A. and a review hearing as to M.G. and A.G. Following testimony by a case manager from a drug treatment facility, the court ordered all three children placed with Marisa under family maintenance and set a review hearing for November 2006. The court continued reunification services for Manuel and set an 18-month review hearing for July 2006. Finally, the court recognized petitioner’s biological paternity but denied his request for reunification services because he was incarcerated. (§ 361.5, subd. (e)(1)). At the 18-month review hearing in July, the court terminated Manuel’s reunification services.
As part of family maintenance, Marisa was allowed to live with the children at a substance abuse treatment facility. However, this arrangement was short-lived. In August, the department took all three children into protective custody because Marisa tested positive for methamphetamine and, at Marisa’s request, placed them with Matilde. The department also filed a supplemental petition (§ 387) seeking the children’s removal.
Anticipating the children’s removal, Sally contacted the department the day before the children were removed and requested another Relative Assessment application. She followed up with a letter dated August 28, 2006, stating she would like to renew her application for relative placement.
In August 2006, the court conducted the detention hearing on the supplemental petition. Fathers’ counsel appeared for petitioner and Manuel. The court ordered mediation and relative placement to remain open for 30 days.
Mediation was scheduled and petitioner was transported to participate. However, mediation did not occur because Marisa was an hour late. Nevertheless, petitioner advised the parties present that he wanted A. placed with his relatives and that he wanted reunification services.
In its dispositional report on the supplemental petition, the department recommended the court terminate Marisa’s reunification services as to M.G. and A.G. but offer her reunification services as to A. The department also informed the court Matilde was willing to adopt all three children if reunification failed.
On September 28, 2006, the court conducted the jurisdictional/dispositional hearing on the section 387 petition. Fathers’ counsel advised the court, for the first time that, although petitioner and Manuel previously waived any potential conflict, petitioner’s request to have A. placed with his mother (Sally) may have created an actual conflict in counsel’s ability to represent both fathers since it would require him to advocate for A.’s removal from Manuel’s mother (Matilde). Counsel questioned whether the court should relieve him as counsel of record.
In response to counsel’s concern, the court inquired if Sally had filed a request for placement. Petitioner informed the court that she had. Marisa’s attorney objected to A. being separated from his half-siblings.
Following the discussion, the court sustained the section 387 petition, ordered the children removed from Marisa’s custody and ordered the department to provide her six months of reunification services. The court set a March 28, 2007, review hearing and ordered placement to remain open for 30 days. The court also ordered the department to process any relative placement request that Sally may file and notify counsel of the results of its investigation.
In October 2006, Sally submitted an application for relative placement, which was approved on January 30, 2007. The delay was caused by the requirement to criminally clear Sally’s 85-year-old brother, who apparently lived with her, and the time consumed in processing his fingerprints multiple times because of the poor quality.
On March 28, 2007, the court convened the six-month review of services. Fathers’ counsel advised the court that Manuel had filed a section 388 petition asking the court to place all three children with him. Counsel also stated that petitioner objected to the request. Consequently, counsel declared a conflict and asked the court to appoint new counsel. The court appointed new counsel for petitioner and granted Manuel’s section 388 petition only as to his children and ordered them placed in his care under family maintenance. The court also terminated Marisa’s reunification services and continued the hearing to adjudicate A’s placement.
The appellate record does not contain the section 388 petition filed on behalf of Manuel.
After the March 28 hearing, Sally informed the social worker that petitioner and her other son were scheduled to be paroled to her home within the next six months. The social worker told Sally that if that occurred, the department could not recommend that A. be placed in her home. Sally stated she would rather gain custody of A. and have her sons live in a shelter. The following day, Sally signed her Relative Assessment request.
The issue of A.’s placement was litigated at a continued contested hearing on May 9, 2007. Meanwhile, fathers’ counsel declared a conflict in representing Manuel and was relieved as counsel. In addition, the department filed a supplemental report opining it would not be in A.’s best interest to remove him from Matilde’s custody to place him with Sally because he was not bonded to Sally. Rather, he was strongly bonded to Matilde with whom he had lived most of his life and to his half-siblings who loved him, regarded him as a member of the family and had occasion to interact with him daily because Matilde babysat for them at her home.
At the hearing, Matilde testified she had been A.’s caretaker for most of his life. She testified that she loved A. as her grandson and wanted to adopt him. She said she would not oppose Sally visiting him.
Following testimony, petitioner’s attorney argued Sally was entitled to placement of A. when she was approved for placement in January 2007 because she is A.’s biological grandmother. Consequently, she asked the court to place A. with her. Minor’s counsel argued Sally, though A.’s biological grandmother, did not have a right to placement when A.’s best interests were best served by remaining in Matilde’s care. Petitioner’s counsel further argued the court should decide A.’s best interests under the circumstances as they existed in January 2007 when Sally was entitled to relative placement rather than the circumstances existing at the time of the hearing then underway.
At the conclusion of the hearing, the court found it would not be in A.’s best interest to order a change in placement. The court ordered visitation for Sally and in-custody visitation for petitioner with the approval of A.’s physician. The court also set a section 366.26 hearing for September 6, 2007. This petition ensued.
DISCUSSION
I. The juvenile court did not err in not appointing new counsel for petitioner.
Petitioner argues his attorney had a potential conflict of interest at the September 28, 2006 hearing and the juvenile court erred in not granting his request for appointment of new counsel. We conclude a conflict of interest did not exist and therefore the juvenile court’s decision was not error.
“In civil or criminal cases involving multiple representation, a conflict typically arises when the circumstances of a particular case present ‘a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by … the lawyer’s duties to another current client .…’ [Citations.]” (In re Zamer G. 153 Cal.App.4th 70, 82.) Stated differently, “‘a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ [Citation.]” (Flatt v. Superior Court (1994) 9 Cal.4th 275, 282, fn. 2.)
In the dependency context, conflicts involving multiple representation generally confront attorneys representing siblings. (In re Celine R. (2003) 31 Cal.4th 45, 55-56 (Celine R.).) Petitioner argues, and we agree, the same standard should apply to an attorney representing two parents.
The question thus arises: How did Manuel and petitioner’s interests with respect to A.’s placement conflict at the September 28 hearing? Simply put, they did not. Why? Because Manuel is not A.’s father. Consequently, he has no parental interest in A., including where A. is placed. This is true even if Manuel wanted A. placed with Matilde. He simply lacked standing to assert any rights vis-à-vis A. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.) Similarly, Matilde lacked standing to assert preferential placement as a relative because she is not A.’s biological grandmother. (§ 361.3(c)(2).) Therefore, the only interest counsel had to present vis-à-vis A. was petitioner’s desire to have him placed with his mother. Since, counsel had no duty to oppose that on Manuel’s behalf, there was not a conflict of interest and the court did not err in not appointing new counsel.
Section 361.3, subdivision (a) requires the court to give preferential consideration to a request by a relative of the child for placement of the child with the relative. “Relative,” as defined in subdivision (c)(2) of section 361.3, includes a grandmother “related to the child by blood, adoption, or affinity within the fifth degree of kinship, .…”
Even if, for the sake of argument, there had been a conflict of interest, any error in not appointing new counsel was harmless. (Celine R., supra, 31 Cal.4th at p. 60.) Sally had not yet been approved for placement. The most another attorney could have done under the circumstances is exactly what petitioner’s attorney did, i.e., ask that Sally be assessed for placement and to be informed immediately of the results of the assessment.
Finally, as an aside, if there was a conflict of interest in this case, it arose at the six-month review hearing on March 28 when fathers’ counsel informed the court Manuel filed a section 388 petition asking for non-relative placement of A. At that point, the court properly recognized a conflict of interest and immediately appointed new counsel.
II. Petitioner did not receive ineffective assistance of counsel.
Petitioner argues trial counsel was ineffective for not appealing from the juvenile court’s decision on September 28 not to appoint new counsel. However, our conclusion the court’s decision was not error disposes of that claim.
Petitioner also argues trial counsel was ineffective for not timely raising the issue of placing A. with Sally. Had counsel done so, he claims, the court would have placed A. with Sally in January 2007 when she was deemed eligible for placement. Assuming, without deciding, petitioner has standing to raise this issue, we conclude he fails to prove prejudicial error, i.e., absent counsel’s errors, there is a reasonable probability A. would have been placed with Sally. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
Citing Cesar v. Superior Court (2001) 91 Cal.App.4th 1023, 1035, real party in interest argues petitioner lacks standing to raise the issue of A.’s placement with Sally because petitioner had no rights to A. that were injured by the court’s placement decision. Indeed, petitioner had previously been denied reunification services, a decision which he did not appeal. Consequently, the court’s decision did not injuriously affect petitioner’s ability to reunify with A. However, petitioner’s parental rights were still intact and, to the extent placement with his mother would enhance a potential bond with A., a reasonable argument could be made that petitioner was injured by the court’s decision. Nevertheless, because we conclude trial counsel was not ineffective, we need not decide whether petitioner has standing.
Assuming trial counsel knew Sally was eligible for placement in January 2007 and had a duty to assert her right to relative placement, he could have filed a section 388 petition seeking to have A. placed with Sally on a theory that A.’s best interest would be served by being placed in Sally’s custody. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In custody placement matters, the juvenile court enjoys wide discretion in ascertaining the best interests of the child. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
In this case, A. has spent most of his short life with Matilde and has come to know and love his half-siblings while in Matilde’s care. Consequently, from A.’s perspective, Matilde and his half-siblings were his family. From the juvenile court’s perspective, the child’s need for continuity and stability are paramount. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Further, when, as here, custody continues over a significant period of time, the best interest of the child may dictate that the current custody arrangement remain unchanged. (Ibid.) Given the length of time A. remained in Matilde’s custody and the strength of the bond between them, we conclude the juvenile court would have denied a request to remove A. from Matilde to place him in Sally’s care. Consequently, petitioner has failed to show that he suffered any prejudice by trial counsel’s representation. Therefore, his claim of ineffective assistance must fail.
III. Petitioner waived his right to argue the juvenile court erred in denying his request to have A. placed with Sally.
Petitioner argues the juvenile court erred in denying Sally’s request for placement under the circumstances existing at the six-month review hearing in May 2007 rather than the circumstances as they existed at the dispositional hearing in September 2006. This argument must also fail for several reasons.
First, petitioner fails to cite any legal authority for his proposition. When a point is asserted without argument and authority for the proposition, “it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647; accord, Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117 [“failure of appellant to advance any pertinent or intelligible legal argument ... constitute[s] an abandonment of the [claim of error”].) Secondly, A.’s circumstances were not demonstrably different in September 2006 than they were in May 2007. He was living with and bonded to Matilde. Consequently, were we to review the merits of this claim, we would conclude A.’s interests, whether examined in September 2006 or May 2007, were best served by remaining in Matilde’s care given the length of time in her custody and the strength of their bond.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.