Opinion
F076560 F076846 F077702 F077703
12-03-2018
In re N.S. et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.S., Defendant and Appellant. In re D.S., On Habeas Corpus.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant and for Petitioner. Colleen Carlson, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent and for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16JD0138, 16JD0139)
OPINION
APPEALS from orders of the Superior Court of Kings County. Louis F. Bissig, Judge. (Retired judge of the Kings Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) ORIGINAL PROCEEDINGS; petitions for writ of habeas corpus. Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant and for Petitioner. Colleen Carlson, County Counsel, and Risé A. Donlon, Deputy County Counsel, for Plaintiff and Respondent and for Respondent.
-ooOoo-
Daryl S. appeals a judgment terminating his parental rights to his now nine-year-old daughter, Nicole S., and three-year-old son, Carlos P., (collectively the children) under Welfare and Institutions Code section 366.26. He also petitions for a writ of habeas corpus. In his appeal, Daryl contends evidence he is the children's presumed father was ignored by the juvenile court and court-appointed counsel, resulting in prejudicial error. In his petitions, as well as in his appeal, he contends counsel was ineffective because she did not establish his status as presumed father.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On our own motion, we consolidated the appeals in case Nos. F076560 and F076846 and the petitions for writ of habeas corpus in case Nos. F077702 and F077703 under our case No. F076560. We take judicial notice of the transcripts, files, briefs, motions and record in case Nos. F076560 and F076846.
We conclude the juvenile court denied Daryl due process by not appointing counsel for him prior to the dispositional hearing. We also conclude Daryl's claim for ineffective assistance of counsel fails on the issue of prejudice. We therefore vacate the order terminating parental rights, deny the petitions for habeas corpus and direct the juvenile court to conduct a new dispositional hearing as to Daryl only, deem him the children's presumed father and assess him for reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Removal
In September 2016, the Kings County Human Services Agency (the Agency) took then seven-year-old Nicole and 17-month-old Carlos into protective custody after their mother, Jessica, left them with their maternal grandfather who failed to supervise them. The children were found wandering alone in the neighborhood and Jessica's whereabouts were unknown.
The Agency filed petitions on the children's behalf under section 300, alleging Jessica failed to protect them and provide for their support (subds. (b)(1) & (g)), naming Daryl and Michael B. as Nicole's alleged fathers and indicating Carlos's father was "Unknown." The children were placed with their maternal aunt, Justina R., and her husband.
Justina informed the Agency Jessica and Daryl had been married for approximately 11 years and the last she knew Daryl was in prison in Arizona. Daryl was listed as Nicole's father on her birth certificate but, according to Justina, Michael was Nicole's father. Jessica and Michael confirmed Michael's paternity as to Nicole. As to Carlos, Jessica identified Daryl and Floyd C. as possible fathers.
On September 28, 2016, the juvenile court ordered the children detained and found that Daryl and Michael were Nicole's alleged fathers. The court did not make a paternity finding as to Carlos. None of the parents were present at the hearing and their whereabouts were unknown. The court declined to appoint counsel for them until they appeared. The court ordered the Agency to provide Jessica services to facilitate reunification and scheduled the jurisdictional hearing for November 3, 2016. Meanwhile, on October 4, the Agency sent Daryl notice of the hearing by certified mail, addressed to the correctional institution in which he was housed in Arizona. A return receipt was not requested. On October 26, the Agency sent him a JV-505 form ("Statement Regarding Parentage") and an ICWA-020 form ("Parental Notification of Indian Status").
ICWA is the abbreviation for the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.).
On November 2, 2016, the Agency filed a first amended petition, naming Daryl and Floyd as Carlos's alleged fathers. It informed the juvenile court it had not received the JV-505 form from Daryl.
Initial Jurisdictional Hearing and Paternity Inquiry
Jessica appeared with her attorney for the November 3, 2016 jurisdictional hearing. She submitted an ICWA-020 form, stating she may have Indian heritage, though she could not identify a tribe. She also indicated the children may have Indian ancestry through their potential fathers. Michael appeared and the court appointed him counsel. Daryl's mother, Amanda, was also present.
Jessica testified she and Daryl married in October 2005 and never filed for divorce. Their relationship was "off and on" over the course of the marriage. Daryl was incarcerated when she conceived Nicole and during her pregnancy but was at the hospital when she was born. His name was on her birth certificate and he believed he was Nicole's father. When Nicole was approximately one year of age, she and Daryl began living together for about a year and a half. Nicole called Daryl "Dad" and had a relationship with all his relatives, including Amanda whom she called "Grandma" and his sisters whom she referred to as "Aunt." Daryl's family acknowledged Nicole as their relative and Nicole spent over 50 nights with Daryl's relatives in the year before the dependency began. Nicole's last contact with Daryl's relatives was within a week of being taken into protective custody. Daryl provided financial support for Nicole every time he and Jessica lived together. They last lived together three years before. During the intervening years, he attempted to contact Nicole at the maternal great-grandmother's home. He last saw Nicole two years before, just before he was incarcerated.
Jessica believed Michael was Nicole's biological father based on the results of a paternity-testing kit she purchased and sent off to a laboratory. However, there was not a paternity order. Nicole knew Michael as her father and called him "Dad." Nicole never lived with Michael but spent the night with him at his sister's house, the last time being April 2016. Nicole knew Michael's family and they recognized her as a member of the family. Nicole called his mother "Grandma," his brother "Uncle," and his sister "Aunt." She spent the night only once with Michael's relatives and spent some holidays with him. Michael gave Jessica money in April 2016 for school clothes and shoes. He also kept in contact with Nicole by telephone. Neither Daryl nor Michael gave Jessica money for rent or food and there were no custody or child support orders issued. However, Jessica applied for federal aid, listing Michael as Nicole's father.
Jessica was not sure who Carlos's father was but identified Daryl, Floyd and another man, Adalberto S., as possible fathers. None of them had undergone paternity testing and no custody orders had been issued. She applied for federal aid, listing Floyd as Carlos's father but did not know if Floyd was ordered to pay child support. She was staying with Daryl when she became pregnant with Carlos and Daryl believed Carlos could be his son as did Floyd. She was incarcerated when Carlos was born so none of the potential fathers was present. There is no father listed on Carlos's birth certificate and no one to her knowledge completed a voluntary declaration of paternity. Daryl had never met Carlos but Floyd saw Carlos approximately 30 times. Floyd did not provide financial support. Adalberto also saw Carlos once in October 2015. She believed Adalberto was in custody in Fresno County but did not have any other information about him.
The juvenile court continued the hearing for two weeks so the Agency could serve Daryl notice and set it as a contested jurisdictional hearing. The court ordered genetic testing for Michael as to both children and for Adalberto as to Carlos. Michael did not make himself available for paternity testing during these proceedings and his whereabouts became unknown.
On November 9, 2016, the Agency mailed an ICWA-030 form ("Notice of Child Custody Proceeding for Indian Child") to the Bureau of Indian Affairs, the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee and the Eastern Band of Cherokee Indians stating that child custody proceedings were underway as to Carlos who was or may be eligible for tribal membership and that a contested jurisdictional hearing was scheduled for November 17, 2016. The ICWA-030 listed Daryl, Michael, Floyd and Adalberto as potential biological fathers and indicated Daryl claimed Cherokee Indian heritage. The Agency also mailed the ICWA-030 form to Jessica and the potential fathers, including Daryl, by certified mail.
Contested Jurisdictional Hearing
The juvenile court conducted the contested jurisdictional hearing on November 17, 2016. Daryl was not present. Adalberto made his first appearance and the court appointed counsel for him. County counsel asked the juvenile court to appoint counsel for Daryl, stating he was notified of the hearing but could not be transported because he was out of state. County counsel also informed the court that Amanda was present in the courtroom. She spoke to Daryl who was aware he could not be transported and said he would be released in approximately 90 days. The court stated that there was not another attorney available and trailed the matter. When the court reconvened, Floyd appeared and the court appointed counsel for him. County counsel informed the court Daryl's family members were enrolled with the Cherokee Nation. The Agency had not received a completed ICWA-020 form from Daryl.
After hearing testimony from Jessica and the social worker, the juvenile court found the allegations in the petition true, sustained the petition, found Jessica was living in Fresno County and scheduled a hearing on December 15 to transfer the case. The court also ordered paternity testing for Adalberto.
On December 15, 2016, the juvenile court removed the case from its calendar but accepted it back a week later after the Fresno County juvenile court accepted the case and immediately transferred it back. The Kings County court appointed counsel for Jessica, who was present, and for Michael, Floyd and Adalberto, none of whom were present. The court did not appoint counsel for Daryl. The court set the dispositional hearing for January 11, 2017.
The Agency recommended the juvenile court order reunification services for Jessica who was enrolled in Hannah's House, an inpatient substance abuse treatment facility. The Agency informed the court it received letters from the Eastern Band of Cherokee Indians and United Keetoowah Band of Cherokee Indians in Oklahoma stating Nicole and Carlos were not registered or eligible for membership.
On January 3, 2017, the Agency sent an updated ICWA-030 form as to Carlos by certified mail to the Cherokee Nation of Oklahoma, adding Amanda as Daryl's mother and Daryl's former address and birthdate.
Dispositional Hearing
On January 11, 2017, Jessica and Adalberto appeared with their attorneys at the dispositional hearing. Michael and Floyd appeared through counsel. Daryl did not appear and was unrepresented. County counsel asked the juvenile court to appoint counsel for Daryl, explaining he was entitled to an attorney. County counsel represented that Daryl waived his right to be physically present, although there is no court order or request to transport Daryl in the record. On county counsel's recommendation, the court appointed an attorney who was not present to represent Daryl. The attorney was expected to appear later in another matter. The court found Michael, Floyd and Adalberto were Carlos's alleged fathers, ordered reunification services for Jessica and scheduled a paternity hearing for February 2017 and a six-month review hearing for July 2017.
Post-Dispositional Hearings
On January 19, 2017, the juvenile court conducted a hearing for appointment of an attorney for Daryl. Neither Daryl nor his attorney of record was present. The court appointed an attorney who was present in the courtroom as counsel for Daryl. The attorney accepted the appointment and was told the discovery contained contact information for Daryl.
On February 15, 2017, the juvenile court conducted a hearing on Adalberto's paternity status and the applicability of the ICWA. By this time, paternity testing excluded Adalberto as Carlos's father. The Agency recommended the court find Adalberto was not Carlos's biological father and the ICWA did not apply. Daryl's attorney appeared and submitted the matter. The court adopted the Agency's findings, relieved Adalberto's attorney and confirmed the July 2017 six-month review hearing.
Six-month Review Hearing
The Agency recommended the juvenile court terminate Jessica's reunification services at the six-month review hearing and set a section 366.26 hearing. The children remained with their aunt Justina who wanted to adopt them if Jessica failed to reunify. Jessica left Hannah's House in February 2017 and was arrested in April for being under the influence of drugs. In June, she was incarcerated on previous warrants. The Agency provided the court a letter addressed to Daryl and dated June 6, 2017, asking him to complete the JV-505 and ICWA-020 forms included with the letter. He completed the JV-505 form on June 14, indicating he married Jessica on October 25, 2005 but did not know if he was the children's biological father. He requested paternity testing. He indicated his father was a member of a federally recognized tribe but did not identify the tribe. Both the JV-505 and ICWA-020 forms were filed with the court on June 23.
On July 5, 2017, substitute counsel appeared for Daryl's attorney at the six-month review hearing and submitted the matter. Daryl was not present. The juvenile court terminated reunification services and set a section 366.26 hearing for October 25, 2017. Meanwhile, the court authorized paternity testing for Daryl, which excluded him as Nicole's but not Carlos's biological father. The court scheduled a paternity hearing. Jessica did not challenge the setting order by extraordinary writ petition.
Paternity Hearing for Daryl
On September 27, 2017, Daryl appeared by court call for the paternity hearing. He was represented by substitute attorney who asked the juvenile court to assess him for reunification services and submitted the matter. The court declined to order an assessment given Daryl's incarceration and the nearness of the section 366.26 hearing. The court found Daryl was Carlos's biological father and ordered that he receive no further notice as to Nicole.
Agency's Section 366.26 Report
The Agency recommended the juvenile court terminate parental rights and approve a plan of adoption for the children with Justina and her husband as the children were doing well in their home. Nicole understood adoption meant she could stay with "her family." She was excited about that prospect and smiled often while discussing it. She was sad that she would not see her mother but was assured by Justina that she would have contact with Jessica even after the adoption was finalized. Carlos was too young to understand the concept of adoption but was happy in the care of Justina and her husband.
The Agency advised the juvenile court that Daryl's relatives participated in their first visit with the children in early October 2017. Daryl's sister, Melissa, requested placement of the children and was undergoing the relative placement process. However, the Agency opined it would be detrimental to relocate the children as they had established a strong bond with Justina and her husband.
As to the ICWA, the Cherokee Nation was able to trace Carlos in their tribal records through his paternal grandfather, Daryl S., Sr. However, Carlos was not considered an Indian child until he or Daryl were enrolled members of the tribe.
Section 366.26 Hearing
On October 25, 2017, Daryl appeared by court call at the section 366.26 hearing. County counsel informed the juvenile court the Agency provided Daryl and Carlos's birth certificates to the Cherokee Nation for enrollment. County counsel also stated the tribe indicated the termination of Daryl's parental rights would not prohibit Carlos from being enrolled later once they received the appropriate information. Daryl's attorney asked for a contested hearing, which the court set for November 8, 2017. She said she had not had a chance to speak to Daryl but knew that he and his family wanted to contest the matter. Her concern was that Carlos, if adopted, would be alienated from Daryl and his family. If, however, he was an Indian child, the family wanted to pursue an Indian adoption which did not involve termination of parental rights. The family was also concerned that Justina allowed Jessica to visit whenever she wanted in violation of the court's order. She explained members of Daryl's family other than Amanda had been hesitant to come forward out of concern for Daryl who had experienced the disappointment of discovering he was not the father of a child to whom he was attached. The court advised the parties that the ICWA did not apply at that point and that the issues at the contested hearing would be limited to whether the children were adoptable and whether any of the exceptions to adoption applied.
Daryl appeared by court call with his attorney at the contested section 366.26 hearing on November 8, 2017. Jessica's attorney submitted the matter. Daryl's attorney stated it had been difficult for her to communicate with Daryl because he was incarcerated out of state. She confirmed with him in open court that he wanted to contest the Agency's recommendation. County counsel asked the court to allow Daryl's telephonic testimony since the Agency could not have transported him to the hearing under any circumstances. The court agreed and clarified with Daryl that he was confined on a California commitment in an Arizona facility because of overcrowding. County counsel asked Daryl's attorney if Daryl was contesting the recommendation as to Carlos only. Daryl's attorney directed the question to him and he stated, "Yes, because you wanted—my understanding that's all the rights I had. I've held Nicole as my daughter since birth." Daryl's attorney corrected herself and stated that Daryl was contesting the recommendation as to both children. County counsel agreed to proceed as to both children because, although Daryl had never been found to be a presumed father, he was married to Jessica when Nicole was born and his name was on Nicole's birth certificate.
Daryl testified he had been incarcerated in Arizona for two years. During that time, he attempted to contact the children numerous times but Jessica prevented it. He had not seen either child. He last saw Nicole in December of 2014. He expected to be released in December 2018.
On questioning by his attorney, Daryl explained that Jessica and her family prevented him and his family from having contact with Nicole by not returning their telephone calls. He believed Nicole was his biological child until Nicole was approximately 18 months old. However, he maintained a relationship with her and she continued to call him "Dad." He did not pay child support but purchased diapers and clothes for Nicole whenever he and Jessica were together. Since his incarceration two years ago, he had not had contact with Nicole. When Jessica conceived Carlos, he and Jessica were trying to make their marriage work. However, he was not named on Carlos's birth certificate because Jessica named other men who could be Carlos's father. He did not know until he received the paternity test results that Carlos was his son. Since his incarceration, he sent letters to Nicole through Jessica and received a couple of letters from Nicole. However, all communication stopped in January 2017 when Jessica left Hannah's House. He did not have any communication with Nicole since she was placed in foster care and did not have any contact with Justina.
Jessica testified she and Daryl were together "off and on" throughout their marriage. They were together for approximately a year to a year and a half after Nicole was born. Jessica lived with Daryl multiple times, the last time being two years before. Daryl maintained a relationship with Nicole and she called him "Dad," but Michael also held Nicole out as his child. Amanda was the only member of Daryl's family that contacted Jessica to visit Nicole. Jessica estimated she and Amanda were in contact more than 20 times and Jessica dropped Nicole and Carlos off with Amanda.
Amanda saw Nicole every day when she was a baby for the first year and then every few months. She then moved out of state to pursue specialty medical care for her husband. She had contact with Nicole approximately a month before she was taken into protective custody and more recently a week before the hearing at the Agency's visitation center.
Daryl's attorney argued it would be in Carlos's best interest to continue the hearing to establish his membership in the Cherokee Nation and pursue a Native American adoption rather than adoption with Justina who was not a native American. She also argued that Daryl maintained a relationship with Nicole.
The juvenile court found the children were likely to be adopted and terminated parental rights.
APPEAL
On appeal, Daryl asserts several errors require reversal. We agree reversal is required. We focus on one significant error: the juvenile court's failure to appoint counsel for Daryl by the dispositional hearing in light of evidence he was the children's presumed father. Respondent contends Daryl had the opportunity to seek presumed father status but did not ask the court to make the finding and has therefore forfeited the issue of paternity for appellate review. We disagree.
I. Forfeiture
A reviewing court will not ordinarily consider a challenge to a ruling if an objection could have been but was not made in the juvenile court. The purpose of this rule is to encourage parties to bring errors to the juvenile court's attention so they may be corrected. Early correction of errors is particularly important in dependency proceedings where the well-being of children and considerations of permanency and stability are of paramount importance. Nevertheless, application of the forfeiture rule is not automatic and a reviewing court may excuse forfeiture in cases presenting an important legal issue. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Respondent contends the juvenile court's paternity findings as to Daryl are legally sound and that he would not have succeeded in raising his paternity status to presumed father of either child. We disagree.
We begin our discussion with In re Meranda P. (1997) 56 Cal.App.4th 1143 (Meranda P.), our lead case on the forfeiture rule in dependency proceedings. In Meranda P., we applied the familiar principle that "an appellate court ... may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order" in affirming a mother's appeal from an order terminating her parental rights. (Id. at pp. 1151, 1166.) The mother in that case argued she was denied effective assistance of counsel throughout the proceedings. However, she declined counsel at the detention hearing, never complained to the court about any representational problems, and did not challenge the setting order by petition for extraordinary writ. (Id. at p. 1158.)
We declined to carve out an exception to the forfeiture doctrine even though the important right to counsel was at stake. (Meranda P., supra, 56 Cal.App.4th at p. 1151.) In large part this was because the enforcement of the doctrine under the circumstances did not infringe the mother's due process rights. (Ibid.)
Further, we recognized that " '[a] parent who is unable to present an adequate defense from the outset may be seriously disadvantaged later.' " We also recognized that "[u]ntil permanency planning, the parent's interest in having a child returned to the parent is the paramount concern of the law." Nevertheless, we reasoned "there are significant safeguards built into this state's dependency statutes which tend to work against the wrongful termination of a parent's right to a child even though a parent may be unrepresented or poorly represented." (Meranda P., supra, 56 Cal.App.4th at p. 1154.)
However, Meranda P. "did not create an absolute bar to review of ineffective assistance, right to counsel, or other claims tardily presented on a .26 hearing appeal." (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) The particular facts of each case must be reviewed to determine whether an exception to the forfeiture rule should be made. An exception is warranted where the parent can show "some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole." (Ibid.) The crux of Meranda P. is forfeiture will be enforced unless due process forbids it. (Ibid.)
We conclude it would be fundamentally unfair to enforce the forfeiture rule in this case because to do so would infringe on Daryl's due process rights as the children's father. The juvenile court was presented evidence in November 2016 that Daryl was the presumed father of the children. However, the court did not appoint an attorney for Daryl to protect his parental rights until after the dispositional hearing. As a result, Daryl was denied the opportunity to advocate for reunification and request relative placement at a critical juncture in the proceedings.
II. Presumed Father
A man's paternity status is critical in dependency proceedings because it determines his parental rights vis-à-vis the child. A presumed father possesses the greatest paternity rights because he is considered the child's "parent." (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449 (Zacharia D.).) As such, it entitles him to appointed counsel, custody (absent a finding of detriment) and reunification services. (§§ 317, subd. (a), 361.2, subd. (a), 361.5, subd. (a).) A biological father (one who has established genetic paternity but not presumed father status) may be offered reunification services if the juvenile court finds services will benefit the child. (Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15; § 361.5, subd. (a).) An alleged father (one who may be the child's father but has not established biological or presumed paternity), does not have a current interest in the child. He does, however, have a due process right to notice and an opportunity to appear and assert a position. (In re Paul H. (2003) 111 Cal.App.4th 753, 760.)
The juvenile court has a duty to determine the parentage of a child. (In re Jesusa V. (2004) 32 Cal.4th 588, 665.) To that end, section 316.2, subdivision (a) requires the court to inquire of the mother and any other appropriate person at the detention hearing, or as soon as practicable thereafter, as to the identity of all possible presumed or alleged fathers.
The Family Code guides California courts in making paternity determinations. It provides for conclusive and rebuttable presumptions of paternity. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1114.) The "conclusive presumption," found in Family Code section 7540, provides: "[T]he child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." In addition, to the conclusive presumption, Family Code section 7611 sets forth the conditions under which a man may achieve presumed father status. As relevant here, Family Code section 7611, subdivision (a) confers presumed father status on a man who is married to the child's natural mother when the child is born.
Jessica's testimony at the November 3, 2016 hearing laid the foundation for finding that Daryl was Nicole and Carlos's presumed father under Family Code section 7611 and Carlos's conclusive father under Family Code section 7540. She testified that she and Daryl were married in October 2005 and never divorced, rendering Nicole and Carlos, born in 2009 and 2015 respectively, children born during the marriage and Daryl their presumed father under section 7611, subdivision (a). Jessica further testified that she and Daryl were living together when Carlos was conceived, making Daryl Carlos's conclusively presumed father. Thus, the foundational facts implicating Daryl's presumed father status were well established at the outset of this case.
Although the juvenile court is not required sua sponte to elevate a man to presumed father status (In re O.S. (2002) 102 Cal.App.4th 1402, 1410 (In re O.S.)), in our view, its duty to determine parentage carries with it the duty to protect it. Daryl's out-of-state incarceration and inability to be transported made him uniquely unable to participate in the case without representation. Accordingly, none of the rights he should have had as the children's presumed father were accorded to him. By failing to appoint counsel to protect his parental rights, the court violated his right to due process.
III. Right to Counsel
"Although a parent's right to counsel in dependency proceedings derives from statute (§ 317), a parent has a constitutional right to counsel at some stages of those proceedings. [Citation.] We determine whether a parent has that right on a case-by-case basis and consider the factual circumstances and procedural setting of the case at the time the error is said to have occurred. [Citations.] [¶] To determine whether federal constitutional rights are implicated, we examine: (1) the private interests at stake; (2) the government's interest; and (3) the risk that the procedures used will lead to an erroneous decision. [Citation.]" (In re O.S., supra, 102 Cal.App.4th at p. 1407.)
A parent's private interest in " 'the companionship, care, custody, and management of his or her children' " is an important one that warrants deference and protection. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 (Lassiter).) The state's interest is in the welfare of the child. (Ibid.) Where the state infringes upon a parent's rights, it shares the parent's interest in accurate and just decisions with respect to the child. However, the state's interest diverges where it seeks to terminate those rights. In such cases, it wants the "termination decision to be made as economically as possible and thus wants to avoid both the expense of appointed counsel and the cost of the lengthened proceedings his presence may cause." (Id. at p. 28.) Further, the state is superiorly positioned to advance its interest. It has legal representation through the county attorney who has access to public records regarding the family and to social workers empowered to investigate the family situation and to testify against the parent. (Id. at p. 43.)
The dispositional hearing represents a critical first step toward the loss of parental rights. At this hearing, the juvenile court may remove the child from parental custody and deny the parent the opportunity to reunify. (§§ 361, 361.5, subd. (b).) If that occurs, the decision to terminate parental rights will be relatively automatic if the child is going to be adopted. (In re Arturo A. (1992) 8 Cal.App.4th 229, 239.)
Here, the risk of an erroneous deprivation of Daryl's parental rights without representation was extremely high. Daryl was incarcerated out of state and he was not going to be transported to participate in the proceedings. Appointed counsel was necessary to provide him a meaningful opportunity to be heard, including his right to elevate his status to presumed father and exercise the rights attendant to that status.
Further, it is apparent that the presence of counsel would have made a "determinative difference" and the absence of counsel rendered the proceedings fundamentally unfair. (Lassiter, supra, 452 U.S. at pp. 32-33.) As the children's noncustodial parent, Daryl had the right to arrange for someone to take care of the children in his absence. (§ 361.2, subd. (a); In re A.A. (2012) 203 Cal.App.4th 597, 606 [incarcerated parent has the same right to request cusody].) His attorney, had one been appointed, could have expressed his desires to the juvenile court. Daryl was also entitled to reunification services absent evidence that would have exempted him under one of the bypass provisions (§ 361.5, subd. (b)(1)-(17)) or evidence that services would be detrimental to the children (§ 361.5, subd. (e)(1)). Since the Agency never considered Daryl a parent for purposes of reunification, it did not provide much detail about his circumstances, including the reason for his incarceration, or discuss any of the statutory bases for denying him reunification services. Consequently, there is no evidence on the record to support denying him reunification services.
There is no evidence, for example, that the juvenile court could have denied Daryl reunification services under section 361.5, subdivision (b)(12) because he had been convicted of a violent felony. Nor is there evidence the circumstances of Daryl's incarceration (i.e., length of sentence or nature of his crime) supported a finding under section 361.5, subdivision (e)(1) that providing him reunification services would be detrimental to the children, especially in light of evidence that Nicole considered him her father and she and Carlos were a sibling group.
We conclude evidence of Daryl's presumed father status required the juvenile court to appoint counsel for him and that its failure to do so by the dispositional hearing violated his right to due process. Though the juvenile court subsequently appointed counsel, counsel made no effort to establish his status as presumed father thus compounding the juvenile court's failure to appoint counsel for him sooner.
IV. Other Appellate Issues
Daryl also contends the juvenile court erred in failing to provide him notice of the proceedings and to comply with the notice requirements of the ICWA, in terminating his parental rights without ensuring his physical presence at the section 366.26 hearing and in failing to make a finding of detriment or parental unfitness. Because we remand the case for a new dispositional hearing, we need not address these issues, except to say that by the section 366.26 hearing, the Agency was in contact with a representative of the Cherokee Nation, provided Daryl's father's enrollment number to the Cherokee Nation of Oklahoma and was assisting Daryl in the enrollment process. Additionally, according to Daryl, in his habeas petitions, he was enrolled in the Cherokee Nation as of March 2, 2018. He fails to show that the juvenile court failed to comply with the ICWA notice requirements or that any delay in establishing his membership prejudiced him.
HABEAS CORPUS PETITIONS
Daryl has filed petitions for writ of habeas corpus, arguing that the proceedings in the juvenile court were fundamentally unfair because he was denied effective assistance of counsel. Counsel was ineffective, he contends, for failing to elevate his paternity status to that of presumed father. In support of the petitions, Daryl submitted declarations from appellate and trial counsel as well as his own declaration. The Agency filed opposition. We issued an order to show cause, returnable before this court, directing the Agency to file a written return and Daryl to file a reply.
Right to Counsel Under Section 317 .5
Indigent parents have a right by rule and statutory provision to representation by competent counsel in dependency proceedings. (§ 317.5, subd. (a); Cal. Rules of Court, rule 5.660(d).) Section 317.5, subdivision (a) provides that "[a]ll parties who are represented by counsel in dependency proceedings shall be entitled to competent counsel." To act effectively or competently, an attorney must have the learning and skill reasonably necessary to diligently handle a particular matter. In other words, the attorney must be knowledgeable about the subject matter. (In re O.S., supra, 102 Cal.App.4th at p. 1408.)
As stated above, a man's status as presumed father is critical to whether he retains his rights to his child. (In re O.S., supra, 102 Cal.App.4th at p. 1410.) An attorney handling a dependency matter should be aware of the importance of a man's paternity status and take appropriate steps to establish his paternal status if possible in a timely manner. (Ibid.)
A parent claiming ineffective assistance of counsel must show that his or her attorney "failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668 (Kristin H.).) "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.)
On January 19, 2017, one week after the dispositional hearing, trial counsel appeared and accepted the appointment of counsel. She appeared on February 15 at a hearing to exclude Adalberto as Carlos's biological father and to find the ICWA did not apply and submitted the matter. Substitute counsel appeared for trial counsel at the six-month review hearing in July 2017 and submitted on the Agency's recommendations to terminate Jessica's reunification services and set a section 366.26 hearing. In September 2017, substitute counsel stood in for trial counsel at the paternity hearing to find Daryl was Carlos's biological father and exclude him as Nicole's father. Counsel asked the court to assess Daryl for reunification services and submitted the matter. Trial counsel appeared with Daryl at the initial section 366.26 hearing on October 25 and at the contested section 366.26 hearing on November 8, 2017. At no time did trial counsel raise the issue of Daryl's paternity status.
In a declaration, appellate counsel states that trial counsel initially filed a notice of appeal as to Nicole only. Appellate counsel describes her attempts to contact trial counsel to ascertain whether she intended to file a notice of appeal as to Carlos. After four telephone calls, which were disconnected before she could leave a message, appellate counsel e-mailed trial counsel three times. When she did not get a response, appellate counsel filed the notice of appeal herself. Trial counsel subsequently filed an amended notice of appeal. Appellate counsel wrote to trial counsel requesting an explanation for her failure to advocate for Daryl's parental rights. Appellate counsel attached to her declaration a letter from trial counsel and a declaration from Daryl.
In her letter dated March 6, 2018, trial counsel explains she sent Daryl a letter on January 24, 2017, notifying him of her appointment and informing him of the February 15, 2017 hearing. She advised him to contact her by telephone or by letter if he had any questions. She sent him the same form letter on February 28 and July 10, 2017, advising him of the six-month review hearing on July 5, 2017 and section 366.26 hearing on October 25, 2017 respectively. In a fourth letter, dated August 11, 2017, trial counsel advised Daryl that the juvenile court ordered paternity testing for him as to both children and set a paternity review hearing for September 27, 2017. Trial counsel also stated that she spoke at length to Amanda at the section 366.26 hearing.
In his declaration, Daryl states Amanda attended the first hearings and told him the children had been detained. He did not know when trial counsel was appointed to represent him. In March 2017, he received a form letter from her dated February 28, 2017. After he received the letter, he called her office four or five times a week for the first few weeks. He subsequently called once or twice a week until September. He believes he called 20 to 30 times. Trial counsel never accepted or returned any of his calls. He left a message for trial counsel giving her permission to speak to Amanda and his sister, Michelle. Amanda and Michelle also called trial counsel multiple times but she did not return their calls. The only other letter he received from trial counsel concerned the termination of his parental rights, informing him that she had filed an appeal for him. He also states that he remains incarcerated in Arizona and is due to be released in December 2018.
In its opposition to Daryl's petition, the Agency attached a declaration from trial counsel dated July 11, 2018 in which she denies receiving any phone calls or communication from Daryl at any time. She spoke to Amanda several times on the telephone after being appointed. Amanda stated she did not pursue a relationship with Carlos as his grandmother until after the paternity test because she and Daryl did not believe Daryl was his father. Her primary concern was that Justina would alienate Carlos from his biological family.
In its return to the petition for writ of habeas corpus, the Agency acknowledges that Daryl could have been found to be the children's presumed father at some point in the proceedings and that trial counsel failed to advocate for and protect his status as presumed father. However, the Agency denies that trial counsel was ineffective or failed to communicate with Daryl. The Agency contends Daryl did not suffer prejudice by any of the juvenile court's rulings because he was never elevated to presumed father status.
Daryl contends in his reply that trial counsel failed to advise him of his paternity rights and, because he had counsel, he could not petition the juvenile court himself to elevate his paternity status.
We are convinced based on the record, the petitions for writ of habeas corpus and the filings related to it, that trial counsel failed to advocate for Daryl's presumed father status and that there was no practical or tactical reason for not doing so, especially given evidence that he qualified. It is apparent she made no effort to review the case history upon receiving the case. Had she done so, she would have discovered the critical fact that the children were born during Daryl's marriage to Jessica. Further, her only effort to communicate with Daryl was by form letter, merely advising him of the court hearings. She does not in any of the letters ask him about his paternity status or explain the importance of establishing his paternity or the legal ramifications of failing to do so. It appears trial counsel believed she satisfied her duty to communicate with Daryl by sending the form letters and expected him to initiate contact with her by telephone or mail. Meanwhile, the juvenile court was making critical rulings that advanced the case toward termination of his parental rights. Even if trial counsel had attempted but been unsuccessful in communicating with Daryl, she could have asked the juvenile court to elevate him to presumed father based on the evidence it already had. Nothing would have precluded the court from making the finding as there were no other presumed fathers seeking that designation.
Further, trial counsel's failure to inquire about Daryl's paternity status and seek to elevate it precluded any possibility of him receiving reunification services, including visitation, or having his relatives assessed for placement. Thus, trial counsel's appointment in light of her inaction in effect left Daryl unrepresented on the issue of paternity. However, while it is clear Daryl suffered prejudice, we cannot on this record assess the prejudice if any of trial counsel's inaction apart from the juvenile court's failure to appoint counsel. Therefore, we reverse the order terminating parental rights based on the juvenile court's failure to appoint counsel and remand for a dispositional hearing as to Daryl only.
The record is undeveloped on the issue of whether any of the bypass provisions of section 361.5, subdivision (b), applied to Daryl. (See fn. 4, ante.) Consequently, we cannot assess whether trial counsel's failure to elevate his paternity to presumed father status would have guaranteed that he would have received services. --------
CONCLUSION
In light of the fundamental error in this case, we find it necessary to remand to allow the juvenile court to conduct a new dispositional hearing to elevate Daryl to presumed father status and assess him for reunification services. We do so acknowledging that the children have been in the care of their maternal aunt and her husband for two years and that our decision may delay permanence for them. Nevertheless, Daryl's fundamental right to parent his children has been abridged without due process. Thus, a new dispositional hearing must be held.
DISPOSITION
The order terminating Daryl and Jessica's parental rights is reversed. On remand, the juvenile court shall appoint new counsel for Daryl and conduct a new dispositional hearing as to Daryl only, at which time the juvenile court will enter a finding that Daryl is the presumed father of the children and order the Agency to assess Daryl for reunification services. If the juvenile court finds a statutory basis for denying Daryl reunification services, the court shall reinstate its order terminating parental rights. The petitions for writ of habeas corpus are denied.
/s/_________
HILL, P.J WE CONCUR: /s/_________
PEÑA, J. /s/_________
MEEHAN, J.