Opinion
H044675 H045020
08-23-2018
In re K.S., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. T.H., Defendant and Appellant. In re K.S., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. G.C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 16JD000113)
I. INTRODUCTION
T.H. is the mother of K.S., the child at issue in this juvenile dependency matter. G.C. is the child's father. The child was born while the mother and the father were in jail on charges of murdering and torturing other children. After sustaining a petition under Welfare and Institutions Code section 300, the juvenile court denied reunification services to both parents and placed the child in a concurrent foster home.
All further statutory references are to the Welfare and Institutions Code.
Prior to the selection and implementation hearing (§ 366.26), the mother filed a combined petition for writ of habeas corpus and petition for relative placement in the juvenile court. The mother asserted that her original appointed counsel was ineffective for failing to investigate and advocate for the child's placement with a relative, and she further asserted that the Monterey County Department of Social Services (the Department) had not conducted a proper relative placement assessment. The juvenile court denied the mother's petition, then held a selection and implementation hearing, at which it terminated parental rights and selected adoption as the permanent plan for the child.
In case No. H044675, the mother appeals from the juvenile court's order denying her petition for relative placement. The mother contends the juvenile court abused its discretion by denying that petition because the Department failed to properly assess relatives for placement. The child's appellate attorney has filed a brief joining in the mother's opening brief.
In case No. H045020, the mother and father both appeal from the order terminating parental rights. The father contends he received ineffective assistance of counsel with respect to the child's placement. The child's appellate attorney has filed a brief joining in the father's opening brief. The mother's opening brief presents no specific arguments relating to the order terminating her parental rights; she indicates that her appeal from that order is intended to protect and preserve her appeal from the order denying her petition for relative placement.
For reasons that we will explain, we will affirm the juvenile court's challenged orders.
Both parents have also filed petitions for writ of habeas corpus, which this court ordered considered with their appeals. The child joins in the mother's petition for writ of habeas corpus. We have disposed of the habeas petitions by separate orders filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. BACKGROUND
A. Section 300 Petition
On July 26, 2016, the Department filed a petition under section 300 as to the child, who was four days old at the time. The mother had given birth to the child while in jail. The mother had four other children: one adult daughter and three teenaged children. The Department had received "multiple referrals" regarding the mother's other children since 1997.
The father was an alleged father. He was 18 years old at the time the petition was filed. The mother was 40 years old at the time the petition was filed. The father had begun living with the mother when he was 17 years old.
The petition alleged that the mother and father had caused the death of two other children through abuse or neglect (§ 300, subd. (f)), that the child had been left with no provision for support (id., subd. (g)), and that the child's sibling had been abused or neglected and there was a substantial risk that the child would be abused or neglected (id., subd. (j)).
In 2014, the mother had begun caring for S.T., D.T., and F.C.: three children whose fathers were in prison. In 2015, the Department received three referrals regarding those children. There were allegations that the mother was providing inadequate supervision, that S.T., D.T., and F.C. were disheveled and hungry, and that the father had hit S.T., D.T., and F.C. with a belt.
In December 2015, F.C. had been found severely neglected, abused, and "near death." S.T. and D.T. had been found dead inside a storage facility in Redding/Plumas County. The storage facility had been rented by the mother and the father.
At the time the petition was filed, the mother and the father were incarcerated in Monterey County Jail, having each been charged with murder, torture, and other crimes. The child was detained in a foster home. Because the father was an alleged father, the Department was not allowing the father to make other arrangements for the child's care.
B. Detention Hearing
The mother and father were both present for the detention hearing held on July 27, 2016. Attorneys were appointed for both parents and for the child. The juvenile court ordered the child detained, finding that the Department had made a prima facie showing that the child was described by section 300 and that removal was necessary to protect the child. The juvenile court specified that the child was being placed under the care of the Department "[b]ased on the petition involving the alleged murders of the children, [S.T. and D.T.] and the alleged abuse of the child, [F.C.]."
The Department requested paternity testing, and the father agreed.
The juvenile court's written order instructed the parents to "immediately disclose to the Department" information that would identify and locate "all of the child's relatives who are grandparents, aunts, uncles, or siblings of the child" as well as "all other relatives of the child who might be considered as a placement for the child."
C. Jurisdiction/Disposition Report and Hearing
The Department's jurisdiction/disposition report, filed on September 8, 2016, recommended that the juvenile court deny reunification services and set the matter for a selection and implementation hearing.
The child remained in a foster home, which was a concurrent placement. The parents remained in jail. Paternity testing had confirmed that the father was the child's biological father.
The mother and father's criminal attorneys had requested that the Department not interview the mother and father. The Department therefore provided the mother's social history as provided to Plumas County social workers during their investigation of the abuse of S.T., D.T., and F.C. The mother had identified various members of her family: her mother, two men who were possibly her father, her maternal grandparents, her three siblings, and her adult daughter.
The mother had "attempted to make arrangements" for the paternal grandfather to take placement of the child prior to her birth, and "[a]s a result," various paternal relatives had been present in the hospital at the time of the child's birth. The paternal grandfather had subsequently contacted the Department about placement, but he did not actually want the child placed with him. He wanted the child placed with the paternal great-uncle, with whom he lived. The social worker met with four paternal relatives: the paternal grandfather, the paternal great-uncle, the paternal great-aunt, and the paternal first cousin once removed. The four paternal relatives "continuously found reasons to justify" the father's actions. The four paternal relatives asserted that there were "innocent people in jail."
The social worker had informed the four paternal relatives of the placement process. The four paternal relatives were instructed to go through Live Scan and attend orientations if they wanted to be considered for placement. None of the four paternal relatives had taken those steps, nor had any of them contacted the Department. The social worker had "requested a relative search to locate additional relatives" who might be able to care for the child, and notification letters "regarding the child's status" had been sent to all relatives found in that search.
A list of notified relatives was attached to the jurisdiction/disposition report. The relatives included a maternal uncle, the mother's ex-husband and four of his relatives, the maternal grandmother, the mother's adult daughter, three paternal relatives, and another maternal relative.
At the uncontested jurisdiction and disposition hearing held on September 13, 2016, the child's attorney noted he was "really concerned about paternal father's side of the family wanting placement." He explained, "I am not sure what role, if any, or to what extent they were aware of what was going on with the two children who are deceased, and if they knew or had reason to know, I would be really, really objecting to any contact." The child's attorney specified that until he got "that information one way or the other," he did not want the paternal relatives to have any contact with the child.
County counsel indicated that the Department "share[d] the exact same concerns" and therefore had "not allowed contact." County counsel further explained that contact was initially denied because paternity had to be determined, and that the Department was "moving very slowly given the nature of the criminal case, because there are a lot of questions about what was known" by the paternal relatives. County counsel indicated there were questions about whether the paternal relatives were involved in the abuse of S.T., D.T., and F.C., and why the paternal relatives had not been supervising the father, who was a minor at the time he was abusing S.T., D.T., and F.C.
The juvenile court found the allegations of the petition true, declared the child a dependent, and denied reunification services to both parents. The juvenile court found that the Department had made diligent efforts to identify, locate, and contact the child's relatives. The juvenile court also found that visitation with the maternal and paternal relatives would not be in the best interests of the child.
The juvenile court set a selection and implementation hearing for December 15, 2016. The parents were advised that they could challenge the order by writ petition, but neither parent filed a writ petition in this court.
D. Section 366.26 Report
The Department filed a section 366.26 report on December 5, 2016. The Department recommended the juvenile court terminate parental rights and approve adoption as the child's permanent plan.
The child remained in the concurrent foster home. The mother and father both remained in jail. The Department had not made any effort to facilitate visitation or contact with the child's half-siblings: "The current circumstances present a strain and detriment to the well-being of the children and contact and placement with each other is not in their best interest." The paternal aunt and uncle had contacted the Department regarding placement but still had not "completed the initial stages of the placement process."
At oral argument, the Department explained that although the paternal aunt and uncle had gone through Live Scan fingerprinting, they had not undertaken the Resource Family Approval (RFA) process.
E. Letter from Lana C.
On December 15, 2016 (the date originally set for the selection and implementation hearing), the mother's attorney filed a letter from Lana C., who claimed to be the mother's "cousin." The letter was dated December 12, 2016 and was addressed to the juvenile court. The letter had been sent as an e-mail attachment to the mother's attorney on December 14, 2016.
In the letter, Lana C. explained she had "heard rumors via media" about the mother's pregnancy. In March 2016, Lana C. had considered contacting the mother about possible adoption of the child, but she had decided not to. On November 11, 2016, Lana C. had learned of the child's birth. Lana C. and her husband had a five-year-old son and were willing to adopt the child. She had reached out to the Department "with the hopes of beginning a home study," but she felt that she had been "discouraged" from seeking placement.
At a hearing held that day, county counsel noted for the record that the Department did not believe Lana C. was "actually a cousin." The selection and implementation hearing was continued.
F. The Mother's Substitution of Attorneys
On January 31, 2017, the mother's attorney filed a declaration indicating she had a conflict of interest that made it impossible for her to continue representing the mother. Another attorney was appointed for the mother, and the selection and implementation hearing was continued again.
G. The Mother's Petition for Writ of Habeas Corpus/Petition for Relative Placement
On March 22, 2017, the mother filed what she titled a petition for writ of habeas corpus and petition for relative placement. The petition alleged that the mother's former attorney was ineffective, in that she had only limited contact with the mother and had not investigated a number of issues on behalf of the mother, including possible qualified relatives for placement. The petition further alleged that the Department had not conducted "a true evaluation of relative placement" and had not attempted to place the child with relatives. The mother requested the juvenile court "direct the Department to discuss and act upon what was never done, the placement of her child according to the law."
At a hearing held that day, the juvenile court asked the Department to file a response to the mother's petition. The mother's attorney asserted that if the Department was going to file a response, he was entitled to file a "traverse." The juvenile court ordered the Department to file a response and the mother to file a reply. The juvenile court again continued the selection and implementation hearing.
Although the mother's attorney and the juvenile court referred to a "traverse," the correct terminology is a "reply," which may be filed after an informal response to a petition for writ of habeas corpus. (See People v. Romero (1994) 8 Cal.4th 728, 741 (Romero); Cal. Rules of Court, rule 4.551(b).) A traverse is filed only after the court finds that the habeas petition states a prima facie case for relief and issues an order to show cause that directs the respondent to file a written return. (Romero, supra, at pp. 737-738.) We will refer to the mother's traverse as a reply.
The Department filed a response to the mother's petition for writ of habeas corpus on April 20, 2017. The Department noted that the issue of relative placement had been discussed at the jurisdiction/disposition hearing and that the mother's attorney had informed the juvenile court "of a possible relative placement with Lana C[.]" on the date originally set for the selection and implementation hearing. The Department repeated its prior assertion that although Lana C. called herself a cousin, she was "not related." Lana C. had not contacted the Department until November 28, 2016.
The Department noted it was "unclear" what the mother was requesting. The Department also argued that the child's placement was "not relevant to the Selection and Implementation Hearing." The Department further noted that the mother had never advised the court that other placement options were available. The Department asserted it had "fulfilled its obligation to search for and assess relatives that requested placement" and that there was no need to change the child's placement.
The mother's reply was filed on May 12, 2017. The mother reiterated her claim that her prior attorney was ineffective for having limited communication with the mother, failing to investigate possible relatives for placement, and failing to advocate for a relative placement for the child. The mother argued that Lana C. qualified as a relative because she was related to the child by affinity, i.e., marriage. The mother asserted that the child would have been placed with Lana C. if not for her prior attorney's ineffectiveness.
In a declaration attached to the reply, the mother asserted that she knew she was pregnant while she was incarcerated in jail. She had repeatedly requested a social worker be assigned to her, but no social worker had ever responded. The mother had also designated two individuals "as the support person" for her childbirth, and she had "made arrangements for responsible individuals" to be at the hospital to help with "arrangements" for the child's custody after the child's birth.
"Each pregnant inmate shall be referred to a Medical Social Worker. The Medical Social Worker shall: [¶] (1) Discuss with the inmate, the options available for the placement and care of the child after delivery. [¶] (2) Assist the pregnant inmate with access to a phone in order to contact relatives regarding newborn placement. [¶] (3) Oversee the placement of the newborn child." (Cal. Code Regs., tit. 15, § 3355.2, subd. (i).)
The mother further asserted that her prior attorney had not contacted her between July 27, 2016 and September 12, 2016. The prior attorney did not provide any written reports to the mother and gave the mother no legal advice. The mother would have objected to portions of the jurisdiction/disposition report, and she would have provided information about "relatives who wished to have placement."
The mother alleged that her prior attorney did not contact her again until December 12, 2016, when the mother received a report indicating her parental rights would be terminated. The prior attorney did not discuss "the legalities" of the case with the mother at that time. At no time did the prior attorney talk to the mother about "having relatives assessed" for placement. The mother would have named several relatives.
The mother's declaration explained her relationship to Lana C. She had grown up with Lana C.—they had "lived like sisters." Lana C.'s mother was married to the mother's uncle. The mother was raised by her uncle and Lana C.'s mother. The mother had not seen Lana C. since 2015, and Lana C. had not been aware of the mother's pregnancy. The mother's declaration also identified a paternal aunt, B.P., "as a second possible placement."
In a declaration, Lana C. confirmed that the mother had been like a sister to her. During the past few years, they had "casually" kept in touch, and she had last seen the mother in late 2015. Lana C. had become aware of the child on or about November 26, 2016, and she had contacted the Department the next day to inquire about "taking in or adopting" the child. The Department had discouraged her from getting involved. Lana C. had also contacted the mother's prior attorney, who had not responded to her. Had Lana C. been contacted at the time of the child's birth, she would have been "ready and willing" to take the child into her home.
Lana C.'s husband submitted a declaration stating that he had met the mother a few years earlier and that he was "eager" to have the child raised in his home.
The mother's adult daughter, A.A., submitted a declaration indicating that she had tried to contact the mother's prior attorney without success. She was interested in visitation with the child.
H. May 17 , 2017 Hearing
The juvenile court held a hearing on May 17, 2017. At the hearing, the parties and the court focused on whether the mother was entitled to an evidentiary hearing on her petition for writ of habeas corpus.
The mother's attorney argued that the prior attorney had not acted diligently. He asserted that there were "factual issues that still need to be resolved," and he requested an evidentiary hearing.
The child's attorney asserted that the child had the "right to be raised by family." He agreed that the mother had established ineffective assistance of counsel and that the juvenile court should hold a hearing so the mother's prior attorney could testify.
The father's attorney represented that the father was "supportive of the mother's petition" and argued that there were "grounds" for an evidentiary hearing.
Counsel for the Department argued that the mother had not made a showing of prejudice and asked that her petition be summarily denied.
The juvenile court found that the sole disputed issue was placement. The juvenile court found that the C.'s had "no blood lineage to the mother" and that no "blood relatives" had "come forward with regard to placement." The juvenile court found that Lana C. was not credible in asserting that the mother's prior attorney had not responded to her, because a response had been sent from an email address associated with the mother's prior attorney. Additionally, the mother's prior attorney had filed a declaration from the C.'s in December 2016. The juvenile court also noted that the mother had initially wanted the child placed with paternal relatives, not the C.'s.
The juvenile court noted that the mother's and father's criminal attorneys had requested the Department not interview the mother or father. The juvenile court found that the Department had done "the best it could" with respect to relative placement in light of the "no contact" requirement.
The juvenile court concluded that there was "absolutely no evidence" that the mother's prior attorney failed to represent the mother properly. When the prior attorney addressed the court, the mother did not indicate "that she wasn't happy with what was happening" and there was no apparent disagreement between the mother and the attorney.
The juvenile court summarily denied the mother's habeas petition, finding the mother had not alleged sufficient facts to warrant an evidentiary hearing and that the order was in the child's best interest. Following the hearing, the mother filed a notice of appeal.
I. Selection and Implementation Hearing
At the selection and implementation hearing held on August 23, 2017, the mother and the father both objected to the Department's recommendations. Both the mother and the father indicated that they wanted the child to be placed with relatives. The juvenile court terminated parental rights and selected adoption as the permanent plan for the child.
III. DISCUSSION
A. The Mother's Appeal
The mother contends the juvenile court abused its discretion by denying the mother's petition for relative placement. She claims the trial court should have found that the Department had not properly searched for, considered, or assessed the child's relatives for placement.
As noted previously, the mother's petition was titled as a combined petition for writ of habeas corpus and petition for relative placement. The mother does not challenge the juvenile court's denial of the habeas petition. We observe that although post-judgment orders in dependency proceedings are generally appealable (§ 395, subd. (a)(1)), an order denying a petition for writ of habeas corpus is not an appealable order (see In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 ["no appeal lies from the denial of a petition for writ of habeas corpus"]; Pen. Code, § 1507 [in non-criminal cases, an order granting a petition for writ of habeas is an appealable order]).
1. The Relative Placement Preference
The relative placement preference is set forth in section 361.3, subdivision (a), which provides that "[i]n any case in which a child is removed from the physical custody of his or her parents . . . , preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . ."
The social worker and the juvenile court are required to consider a number of factors "[i]n determining whether placement with a relative is appropriate" (§ 361.3, subd. (a)), including "[t]he best interest of the child" (id., subd. (a)(1)) and the ability of the relative to "[p]rovide a safe, secure, and stable environment for the child" (id., subd. (a)(7)(A)), to "[e]xercise proper and effective care and control of the child" (id., subd. (a)(7)(B)), and to "[p]rotect the child from his or her parents" (id., subd. (a)(7)(D)).
"[P]referential consideration under section 361.3 'does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests.' [Citation.] In other words, when a child is taken from his [or her] parents' care and requires placement outside the home, section 361.3 assures an interested relative that his or her application for placement will be considered before a stranger's request. [Citations.]" (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)
" 'Relative' means an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons even if the marriage was terminated by death or dissolution." (§ 361.3, subd. (c)(2).) During the proceedings in this case, former section 361.3, subdivision (c)(2) provided: "However, only the following relatives shall be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle, or sibling." (Stats. 2014, ch. 765, § 2; Stats. 2016, ch. 612, § 71.)
2. Standing
"Whether a person has standing to raise a particular issue on appeal depends upon whether the person's rights were injuriously affected by the judgment or order appealed from. [Citation.] A person does not have standing to urge errors on appeal that affect only the interests of others. [Citation.] Accordingly, a parent is precluded from raising issues on appeal which do not affect his or her own rights. [Citation.]" (In re A.K. (2017) 12 Cal.App.5th 492, 499 (A.K.).)
Section 361.3 "protects a relative's 'separate interest' in a relationship with the child. [Citation.] In contrast, a parent's interest in a dependency proceeding is in reunifying with the child. [Citations.] The parental interest in reunification is distinguished from a relative's 'separate interest' in preferential placement consideration or in having a relationship with the child. [Citation.]" (A.K., supra, 12 Cal.App.5th at p. 499.) Because a parent's interest is in reunification, "a parent does not have standing to raise relative placement issues on appeal, where the parent's reunification services have been terminated. [Citation.]" (Ibid.; see also In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460 [after termination of reunification services, parents could not challenge juvenile court's ruling denying child's placement with relatives].)
Here, the mother had been denied reunification services at the jurisdiction and disposition hearing. The mother therefore cannot establish that her "rights and interest in reunification are injuriously affected" by any failure to consider relatives for placement. (A.K., supra, 12 Cal.App.5th at p. 499.) The mother also does not argue that the order terminating her parental rights was improper "in any respect," and thus she has "no remaining, legally cognizable interest in [the child's] affairs, including h[er] placement." (In re K.C. (2011) 52 Cal.4th 231, 237.)
In sum, we conclude that the mother has no standing to challenge the denial of her petition for relative placement and that we therefore need not consider the merits of her claims.
3. Forfeiture
Even if the mother had standing to raise a challenge concerning relative placement, she failed to preserve the specific claims she now presents. As noted above, the mother's petition for relative placement broadly alleged that the Department had not conducted "a true evaluation of relative placement" and had not attempted to place the child with relatives. The mother's petition did not specify the Department's alleged errors nor specify any applicable law regarding relative placement. The mother's petition requested an order directing the Department to "address relative placement and near kin placement."
The mother's reply also did not specify how the Department failed to meet its obligations with regard to relative placement. And at the hearing on her combined petition for writ of habeas corpus and petition for relative placement, the mother presented no argument concerning the Department's alleged failure to conduct a proper evaluation of relatives for placement.
Now, on appeal, the mother presents a number of specific contentions: (1) the social workers did not assess "the paternal relatives who were present at the hospital for placement" at the time of the child's detention; (2) the Department did not ask the mother to identify additional relatives who might have been available for placement, and the juvenile court did not ask about relatives during the detention hearing; (3) the Department failed to exercise due diligence in conducting the search for relatives and failed to discover or notify the mother's adult daughter and siblings; and (4) the Department "discouraged" relatives from seeking placement. None of these contentions were made in the mother's petition, reply, or at the May 17, 2017 hearing.
A similar factual scenario resulted in forfeiture in A.K., supra, 12 Cal.App.5th 492. In that case, the father appealed after his parental rights were terminated. Prior to the selection and implementation hearing, the father had requested "return of the minor or, alternatively, placement of the minor with the paternal grandmother." (Id. at p. 497.) In a pretrial brief, the father had identified the " '[d]etermination of whether the Department has taken sufficient measures to investigate Paternal Grandmother's ability to take custody of the minor child' as a 'factual issue.' " (Id. at p. 501.) But at the selection and implementation hearing, the father failed to "raise his relative placement preference objection." (Ibid.) On appeal, he claimed "the Department and juvenile court failed to assess the paternal grandmother's request for placement under the requirements of section 361.3." (Id. at p. 498.) The appellate court found this claim forfeited because the father had not objected on that basis, presented evidence on the issue, or requested the juvenile court make factual findings or a ruling "regarding whether the paternal grandmother was properly investigated for placement or entitled, at any point, to relative placement preference." (Id. at p. 501.)
The appellate court in A.K. also rejected the father's claim that the juvenile court should have held a relative placement hearing under section 361.3 sua sponte. (A.K., supra, 12 Cal.App.5th at p. 501.) First, because the foster parents wanted to adopt the child, "there was no need to make a change in placement, which would have triggered the postreunification preferential consideration of relative placement." (Id. at p. 502.) Second, the father's failure to request a hearing regarding placement with the paternal grandmother meant that "the occasion to hold a section 361.3 hearing was not presented to the juvenile court." (Ibid.)
In the instant case, prior to the May 17, 2017 hearing, the mother filed a petition that broadly alleged that the Department had not conducted "a true evaluation of relative placement" and had not attempted to place the child with relatives. Her petition made no specific allegations or arguments with regard to the Department's failure to comply with its duties concerning relative placement. Her petition did not specify any relatives who were willing to have the child placed with them, and her reply did not specify any relatives who were entitled to statutory preference. At the hearing, the mother did not present evidence or argument about whether any relatives had been properly assessed for placement, and she did not request the juvenile court make factual findings or rule on that issue. Under the circumstances, the mother "failed to preserve the issue on appeal. [Citations.]" (A.K., supra, 12 Cal.App.5th at p. 501.)
The instant case is distinguishable from the three cases that the mother relies on for the proposition that she did not forfeit her claims because the juvenile court had a sua sponte duty to hold a hearing regarding relative placement. The first case, Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, involved application of the relative placement preference because a new placement was required. (See § 361.3, subd. (d).) In this case, the child remained in the same concurrent placement throughout the proceedings; no new placement was required.
The second case, In re R.T. (2015) 232 Cal.App.4th 1284 (R.T.), involved a request that the child be placed with paternal aunts, who were entitled to statutory preference but who were never considered for placement. The instant case is distinguishable from R.T., because here, no relative entitled to preferential consideration filed a request for placement: the paternal grandfather told the Department that he did not actually want the child placed with him. Additionally, unlike in R.T., the alleged relative who submitted a declaration in support of the mother's petition for relative placement (Lana C.) had come forward late in the proceedings, and she was not a relative entitled to preferential consideration because she was not "an adult who is a grandparent, aunt, uncle, or sibling." (Stats. 2014, ch. 765, § 2; Stats. 2016, ch. 612, § 71.) Moreover, unlike in R.T., here the record shows that the Department did initially consider the paternal relatives for placement under the statutory criteria. However, the Department had serious doubts that placing the child with the paternal relatives would be in the child's best interest due to questions about the paternal relatives' knowledge of the abuse and neglect of S.T., D.T., and F.C., and due to the paternal relatives' failure to supervise the father, who had been charged with murdering and torturing those three children. (See § 361.3, subd. (a)(1); see also id., subds. (a)(7)(A), (B), & (D).)
The third case, In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), also involved a request for placement by relatives who were entitled to statutory preference. In that case, the relatives had been requesting placement throughout the proceedings, but due to the agency's delays, the relatives were not approved for placement until after the 12-month review hearing, at which reunification services were terminated. The appellate court found that the juvenile court's reasons for denying the relatives' request for placement were erroneous: section 361.3 still applied, and the relatives did not have to show that a new placement was necessary and that the change of placement would be in the child's best interest. (Isabella G., supra, at p. 723.) In the present case, no relative entitled to statutory preference requested placement.
In sum, the mother failed to preserve the specific claims she now presents regarding relative placement, and the juvenile court did not err by failing to hold a hearing on relative placement sua sponte.
4. Prejudice
Even if the mother had standing and had not forfeited the relative placement issues, we would find the trial court did not abuse its discretion by denying her relative placement petition because the mother failed to show prejudice from any of the Department's alleged errors.
First, no prejudice has been shown regarding the mother's complaint that, at the time of the child's detention, the social workers did not assess whether the child could be placed with "the paternal relatives who were present at the hospital" (i.e., the paternal grandfather, the paternal great aunt and great uncle, and the paternal first cousin once removed). The record contains no evidence to support a finding that an assessment would have shown that the factors listed in section 361.3, subdivision (a) favored placement of the child with those paternal relatives.
Second, no prejudice has been shown regarding the Department's alleged failure to ask the mother to identify additional relatives who might have been available for placement and the juvenile court's failure to ask about additional relatives during the detention hearing. Prior to the detention hearing, the mother had indicated she wanted the child placed with the paternal grandfather. Nothing in the record shows that the mother would have named alternate placement possibilities at the time, had she been asked. Further, the mother presented no evidence to support a finding that the factors listed in section 361.3, subdivision (a) would have favored placement of the child with any unnamed relatives.
Third, no prejudice has been shown regarding the Department's alleged failure to exercise due diligence in conducting the search for additional relatives and failure to discover some maternal relatives—specifically, the mother's adult daughter and siblings. The mother did not attempt to show that these particular relatives would have sought placement or that the factors listed in section 361.3, subdivision (a) would have favored placement of the child with those relatives.
Fourth, no prejudice has been shown regarding the mother's complaint that the Department "discouraged" the paternal relatives and Lana C. from seeking placement. In making that claim, the mother relies on entries in delivered service logs that are not part of the record on appeal. This court denied the mother's motion to augment the record with the delivered service logs without prejudice to a further showing that the logs were part of the record. However, even if we were to consider those logs, we would find no prejudice. The logs show that the social worker informed the paternal relatives of the assessment process and engaged them in a discussion of the child's best interests. During that discussion, the paternal relatives admitted they had allowed the father to move in with the mother when he was a juvenile and that they had not noticed anything concerning at the mother's home. Thus, the logs fail to show that the factors listed in section 361.3, subdivision (a) favored placement of the child with the paternal relatives. In fact, the logs support the Department's concerns about the ability of the paternal relatives to "[p]rovide a safe, secure, and stable environment for the child" (id., subd. (a)(7)(A)), to "[e]xercise proper and effective care and control of the child" (id., subd. (a)(7)(B)), and to "[p]rotect the child from his or her parents" (id., subd. (a)(7)(D)). The logs further reflect that the paternal relatives ultimately decided not to pursue placement because they felt that placement with non-relatives would allow the child to "live a life free of not knowing what her parents did," not merely because they were discouraged from seeking placement. And, as to Lana C., as noted above, no prejudice is shown because although she was arguably a relative within the definition of section 361.3, subdivision (c)(2), she was not a relative entitled to preferential consideration, in that she was not "an adult who is a grandparent, aunt, uncle, or sibling." (Stats. 2014, ch. 765, § 2; Stats. 2016, ch. 612, § 71.)
In addition to failing to show prejudice from the individual claimed errors, the mother failed to show that placement with relatives was in the child's best interest at the time of the hearing on her petition for relative placement. (See In re Stephanie M. (1994) 7 Cal.4th 295, 322.)
B. The Father's Appeal
The father contends he received ineffective assistance of counsel with respect to the child's placement. He claims his trial counsel should have done more to support his "wish to have the paternal relatives take custody of the [child] at birth and adopt her."
1. Legal Standards
Section 317.5, subdivision (a) provides: "All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." This statutory right entitles a parent to bring a claim of ineffective assistance of counsel on appeal. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667 (Kristin H.).) "[A]n indigent parent may in some cases [also] have a due process right to counsel," and thus to the effective assistance of counsel. (Id. at p. 1659.)
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." (Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668.) "The parent must also establish that the claimed error was prejudicial" under the harmless error test enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (Kristin H., supra, at p. 1668.) "Thus the 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.]" (Ibid.)
" 'In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where "there simply could be no satisfactory explanation" for trial counsel's action or inaction. [Citation.]' [Citations.] Usually, however, '[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. . . . 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 writ petition. [Citation.]' [Citations.]" (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)
2. The Father's Claims
The father contends his claim of ineffective assistance is appropriate for direct appeal because "there was no conceivable strategy or satisfactory explanation" for his trial counsel's failure to assert any objections to the Department's "blatant violation of proper relative consideration and placement protocol."
The father notes that the mother's second attorney raised the placement issues in asserting that the mother's prior attorney had been ineffective. He contrasts those attempts to object to the placement process with his own trial attorney's lack of argument on the subject. According to the father, competent counsel would have engaged in efforts to initiate relative placement assessments at detention and prior to the selection and implementation hearing.
As for prejudice, the father asserts that by intervening early in the case, the Department would have conducted "a proper investigation and assessment" of the paternal relatives. He asserts the record contains "no unfavorable facts" pertaining to the paternal relatives and that the Department was not justified in bypassing the paternal relatives based on a concern that the child needed " 'anonymity' " due to the circumstances.
Even if we assume that competent counsel would have raised the relative placement issue earlier in the proceedings, the record does not establish prejudice.
First, the record does not show that the father was prejudiced by his trial counsel's failure to argue that the Department was required to initiate an emergency placement assessment of the paternal relatives at the time of the child's detention. (See § 309, subd. (d)(1).) The father was only an alleged father at the time of the child's detention, and thus it was not established that the paternal relatives were actually relatives of the child. (See § 319, subd. (f)(1); In re O. S. (2002) 102 Cal.App.4th 1402, 1406 ["An alleged father does not have a current interest in a child because his paternity has not yet been established."].) The record also does not show that the paternal relatives were nonrelative extended family members. (See § 362.7 ["A 'nonrelative extended family member' is defined as an adult caregiver who has an established familial relationship with a relative of the child . . . or a familial or mentoring relationship with the child."].) Moreover, the Department reasonably could have found it inappropriate to release the child to the paternal relatives at that time. Under section 309, subdivision (a)(2), the Department need not release a child to relatives if "[c]ontinued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a relative." In this case, the Department was aware that the paternal relatives had failed to supervise the father when he was a minor, which ultimately led to the death of two children and the severe neglect of a third child. Under the circumstances, the Department was justified in determining that the child's detention with non-relatives was "of immediate and urgent necessity." (Ibid.) There is no reasonable probability that an objection by the father's trial counsel at the detention hearing would have led to a different result.
Second, although the paternal grandfather initially indicated he was interested in custody, by the time of the jurisdiction and disposition hearing, the paternal grandfather did not want the child placed with him. Although the paternal grandfather wanted the child placed with the paternal great-uncle, the paternal great-uncle was not a relative entitled to preferential consideration (see former § 361.3, subd. (c)(2)) and, in any event, he did not follow through with the placement process. Without evidence that the paternal relatives sought placement of the child, the father cannot establish it is reasonably likely that an objection by his trial counsel would have resulted in placement of the child with the paternal relatives. (See Kristin H., supra, 46 Cal.App.4th at p. 1668.)
Third, contrary to the father's assertion, the record does suggest "unfavorable facts" pertaining to the paternal relatives: their failure to properly supervise the father when he was a minor, and the fact that they had minimized or justified the father's actions, which had apparently led to the death of S.T. and D.T. and the near death of F.C. Under section 361.3, the Department would have been required to consider the child's best interest (id., subd. (a)(1)) and the relatives' ability to "[p]rovide a safe, secure, and stable environment for the child" (id., subd. (a)(7)(A)), to "[e]xercise proper and effective care and control of the child" (id., subd. (a)(7)(B)), and to "[p]rotect the child from his or her parents" (id., subd. (a)(7)(D)). The appellate record provides no basis for finding it reasonably probable that, had the paternal relatives been assessed for placement, the Department and court would have found that the statutory factors favored a finding that such placement was appropriate.
In short, on this record we are unable to conclude that the father was prejudiced by his trial counsel's failure to seek relative placement assessments.
IV. DISPOSITION
The May 17, 2017 order and the August 23, 2017 order are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.