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In re X.B.

California Court of Appeals, Fourth District, Second Division
Jan 21, 2011
No. E050999 (Cal. Ct. App. Jan. 21, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. J219104 Barbara A. Buchholz and A. Rex Victor, Judges.

A. Rex Victor is a retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

King J.

I. INTRODUCTION

This juvenile dependency appeal involves the parental rights of R.H. (Father), who suffers from developmental disabilities in the form of mild mental retardation. Throughout the proceedings, Father had a limited ability to read and write, care for his own needs, and understand certain concepts.

Father claims his parental rights to his son, X.B., were terminated in violation of his federal due process rights because they were terminated based solely on his developmental disabilities. He argues that the San Bernardino County Children and Family Services (the department) never alleged or proved he was “unfit” to parent X.B. based on clear and convincing evidence at any point during the proceedings. Concomitantly, Father challenges the sufficiency of the evidence supporting the court’s jurisdictional findings against him and its findings at the dispositional hearing, and at each subsequent review hearing, that X.B. would suffer detriment if placed in Father’s care.

Father also claims the juvenile court erroneously failed to (1) appoint independent counsel for X.B. after it became apparent that the attorney representing X.B. and his maternal half brother J. had an actual conflict of interest, and (2) conclude that the child benefit exception to the statutory adoption preference (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)) applied to his relationship with X.B.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Father has also filed a petition for a writ of habeas corpus, claiming his appointed counsel rendered ineffective assistance throughout the proceedings and there is a reasonable probability his parental rights would not have been terminated but for his counsel’s deficient representation. Father claims his trial counsel was ineffective in failing to (1) contest the jurisdictional allegations against him, (2) request custody of X.B. at the 12- and 18-month review hearings, (3) claim the department did not provide him with reasonable reunification services tailored to his developmental disability, (4) object to supervised visitation, and (5) discover and introduce evidence “favorable” to Father’s disability, that is, evidence Father was capable of parenting X.B. on his own.

We ordered Father’s writ petition considered with his appeal. We reject Father’s due process and other claims on appeal and also conclude his writ petition fails to make a prima facie showing of a prejudice, that is, a reasonable probability his parental rights would not have been terminated but for his counsel’s allegedly deficient representation. We therefore affirm the order terminating parental rights. We deny the writ petition by separate order.

II. BACKGROUND

In this section we describe the facts and procedural history of these proceedings as reflected solely in the record on appeal. Additional evidence adduced by Father in support of his writ petition is discussed below in connection with Father’s ineffective assistance claims.

A. X.B.’s Detention

X.B. and his mother testified positive for methamphetamine when the mother arrived at a hospital shortly before X.B. was born in January 2008. The mother had used methamphetamine only five to six hours before giving birth. She was 20 years old, transient, and had no diapers, formula, or other provisions for X.B. Father was at the hospital when X.B. was born but did not sign the birth certificate and said he wanted a paternity test. Father was willing to allow X.B. and the mother to come home with him.

Father and the mother were never married. They dated for 18 months before X.B. was born, but broke up for a month around the time X.B. was conceived in March or April 2007. During that time the mother had sexual relations with another man whom she believed may have been X.B.’s father. On January 24, 2008, paternity test results showed Father was X.B.’s biological father.

Father was born in 1988 and had always lived with his mother, E.M. He was developmentally disabled, could barely read or write, and graduated high school with a “certification of completion of life skills.” He was unemployed and received supplemental security income (SSI). The Inland Regional Center was providing him with employment referrals but no other services. In 2004, he was declared a ward of the juvenile court after committing petty theft. As an adult in 2006, he pled guilty to carrying a concealed knife and possessing burglary tools, and was placed on probation for 36 months.

The mother had three other children by men other than Father. The oldest two were living with a paternal relative. Her third child, J., a boy born in January 2006, was left in the care of his maternal grandmother. J. was found in a dirty soiled diaper, had not been bathed for days, and had a severe rash that had been untreated for weeks, possibly months. J.’s maternal grandmother had an extensive criminal and drug history.

The department took J. into protective custody along with X.B., placed the boys together in temporary foster care, and filed dependency petitions for each of them. At the detention hearing on January 8, the court ordered the paternity test for Father, which later showed, on January 24, that Father was X.B.’s biological father. Father and the mother were allowed supervised visitation with both boys, twice weekly.

When interviewed on January 16, Father said he did not understand questions and requested his mother be present to assist him. He signed a declaration acknowledging his mother could not answer questions for him, and he would answer the questions to the best of his ability and understanding. Father said he had been with the mother for 18 months, but did not remember when or why they had broken up and did not know she was using drugs. The mother would go “back and forth” between his house and her parent’s house. Father had questioned the mother in the past regarding where she had gone when she was not with him, but she would not tell him.

Father denied having any criminal history, but when confronted with his records said he forgot about his 2006 arrest and did not know he was still on probation. He denied ever using drugs or alcohol. He said he had helped the mother raise J. and he was willing to support the mother and help her raise X.B. and J. in his mother’s home. During a separate interview, the mother said Father had always “been there” for her during her pregnancy with X.B., and J. saw Father as his own father and called him “dad.”

Neither the mother nor J. are parties to this appeal.

B. Jurisdiction/Disposition

At a combined jurisdictional and dispositional hearing on January 31, 2008, Father’s counsel told the court that Father was “a nice young man, ” but did not read or write, and suggested the court appoint a guardian ad litem for him. E.M. was present at the hearing, and Father’s counsel said she “basically” acted on Father’s behalf. Prior to the hearing, the department reported Father had “some difficulty” understanding the legal system and department policy.

The court found no basis to appoint a guardian ad litem for Father after explaining to him that a guardian ad litem would make his decisions for him, and Father said he did not want one. The court noted that Father, “with the aid of his mother and others seems to function well in our world, within his capabilities.... And, I think he understands.... that he wants to make his decisions.”

The petition for X.B. alleged that the mother had a substance abuse problem that interfered with her ability to parent (the b-1 allegation), Father had an “insufficient” ability to provide “daily basic needs and financial care” for X.B. (the b-2 allegation), and Father knew or reasonably should have known X.B. would be at risk if left in the care of the mother (the b-4 allegation).

Mother did not dispute the b-1 allegation. Father’s counsel conceded the b-2 allegation but disputed the b-4 allegation. The court found all three allegations true. Based on all three jurisdictional findings, the court found X.B. was a child described in section 300, subdivision (b) and declared him a dependent. J. was also declared a dependent.

Regarding disposition, the court expressly found by clear and convincing evidence that returning X.B. or J. to the home of the mother or Father would pose a substantial danger to the children’s physical and emotional health, safety and well-being, and there were no reasonable means to protect them without removing them from parental custody. (§§ 361, subd. (c)(1), 361.2, subd. (c).) The court also found the department had provided reasonable services to prevent the need to remove the children from parental custody, and each parent had made no progress toward alleviating the conditions necessitating the removal of the children.

The court found Father was a presumed father of X.B. and ordered that both parents be provided with reunification services and supervised, twice weekly visitation with both children. Father’s counsel told the court E.M. was “very proud” her son was attending “family relationship” and “parenting” classes and had completed eight classes. Before the hearing, the department reported Father had been hesitant to participate in some recommended services, including Al-Anon meetings and individual counseling. Though he and the mother began attending parenting classes together in early January, Father said he did not believe he needed to attend Al-Anon meetings or individual counseling. Still, Father’s case plan required him to complete a parenting class, attend an Al-Anon support group, and participate in counseling to address his ability to parent.

C. The Review Periods and Hearings

1. Six-month Review

At the six-month review hearing on July 31, 2008, the department recommended continuing reunification services for both parents. The department reported Father had not “become motivated” to attend Al-Anon meetings until May 2008 and had only recently agreed to attend counseling. Father and the mother had completed a parenting class, and the mother had nearly completed an inpatient drug treatment program.

By this time, the parents were living apart in their respective mothers’ homes, but both had consistently visited with the children at department offices. During one visit, Father became angry with the mother, yelled at her as the visit ended, and police escorted him out of the office. Father later told the social worker that the mother lived in an environment where residents used drugs, and he wanted to care for X.B. if the mother was unable to obtain appropriate housing for herself and the children. J. and X.B. were in good physical health, though X.B. had eczema on his face and head which his physician believed was caused by his exposure to methamphetamine in utero. Neither child showed signs of developmental delays or behavioral problems, and J. was affectionate toward X.B.

The court ordered six additional months of reunification services for both parents, and found by a preponderance of the evidence that reasonable services had been offered or provided but returning the children to either parent’s care would create a substantial risk of detriment to their physical and emotional well-being and safety. The court found by clear and convincing evidence that each parent had thus far failed to make substantial progress in their case plans.

2. Twelve-month Review

Shortly before the originally scheduled 12-month review hearing on January 30, 2009, the department recommended terminating the mother’s services for both children and setting a permanency hearing for J. The mother had not remained sober during an intensive outpatient drug treatment program and still needed intensive outpatient services. In its 12-month review report, the department initially recommended that X.B. be placed in Father’s care pursuant to a family maintenance plan, but changed that recommendation at the time of the hearing to providing Father with six more months of reunification services with X.B. The parents contested these recommendations, and at the January 30 hearing the court referred both matters to mediation.

Between July 2008 and January 2009, Father attended Al-Anon meetings for a time but did not participate in any type of counseling. For two months prior to the January 30, 2009, 12-month review hearing, X.B. had been having unsupervised, overnight visits with Father in E.M.’s home from Saturday through Wednesday afternoons. E.M.’s home was neat, clean, and free of safety hazards. E.M. worked full time, while Father was still unemployed and apparently cared for X.B. without assistance during the daytime. Father believed he could properly care for X.B. and wanted X.B. placed in his care. E.M. was supportive of Father “in many ways” and also believed Father could properly care for X.B.

The department was still concerned Father was “learning disabled” and “[could] not process certain concepts.” For example, Father wanted to allow the mother daily unsupervised visits with X.B. when she was in an inpatient drug treatment program. The social worker had to explain to Father “several times” why unsupervised visits with the mother would risk detriment to X.B. Also, during one supervised visit at the department offices, Father quickly picked up X.B. by his hands and lifted him into the air, risking injury to X.B.’s arm sockets. According to the social worker, Father recognized he had a learning disability but did not recognize “some of his limitation in cognitive functioning.” He was “moderately reliant” upon E.M. and still required guidance.

The 12-month review hearing was held in March 2009, following the mediation and after Father began attending individual counseling sessions in February 2009. The parties agreed that the mother and Father would each receive further services and that X.B. would not be placed with Father pursuant to a family maintenance plan. The court accepted the stipulations and ordered further services for both parents. The court found by a preponderance of the evidence that reasonable services had been offered or provided to both parents, that returning X.B. to Father’s care would create a substantial risk of detriment to X.B., and Father’s progress toward alleviating or mitigating the causes of X.B.’s removal had been “moderate to substantive.” The court found by clear and convincing evidence that neither parent had completed their case plans. The court further ordered that, pending the 18-month review hearing, Father’s overnight visits with X.B. would be limited to Saturdays and Sundays and would be supervised by E.M.

At the March 2009 12-month review hearing, counsel for X.B. and J. expressed concern that separating the children, even temporarily, would not be in their best interests. County counsel confirmed that, in the event the parents did not reunify with the children by early July 2009, or 18 months from their initial detention, the department would seek to terminate both parents’ reunification services and, thereafter, place the children in the same adoptive home.

3. Eighteen-month Review

Before the 18-month reviewing hearing on July 6, 2009, the department reported that Father had attended 12 counseling sessions since February 2009 but needed further counseling to address parenting and child development issues. He had been in counseling to address three issues: (1) his “ability to understand child development, ” (2) his “ability to recognize when his child needs protection, ” and (3) his “capacity to protect his child.” A May 19 report by Father’s counselors noted that Father “explored ways [of] creating a safe environment for his child, ” but “struggle[d]” with understanding the child development materials, failed to complete some homework assignments, and “[did] not appear to recognize the many demands and needs of a growing child.” The report concluded that Father could benefit from further therapy sessions to “explore child/adolescent development.”

In its 18-month review report, the department concluded it was unlikely Father was capable of acquiring the skills necessary to meet the daily needs of X.B. Citing Father’s “limitations, due to his disabilities, ” and while acknowledging Father had “not done anything inherently wrong” regarding X.B., the department recommended terminating Father’s services and placing X.B. in a legal guardianship with E.M. following a section 366.26 hearing. Alternatively, the department recommended terminating Father’s parental rights and placing X.B. for adoption. Regarding J., the department recommended terminating the mother’s services and placing J. for adoption following a section 366.26 hearing. The mother had not completed her outpatient program and her whereabouts were still unknown. Meanwhile, J.’s paternal grandparents, who lived in Texas, had come forward and were seeking to adopt J.

On July 6, Father’s counsel told the court Father was contesting the department’s recommendation that his services be terminated, and the matter was continued to July 27 for a contested 18-month review hearing. Given that J.’s paternal grandparents were seeking to adopt J., the attorney for both children expressed concern the children would be separated pending a section 366.26 hearing, and the court ordered the children not be placed in separate homes pending a further hearing. Then, on July 27, Father’s counsel told the court he was not contesting the termination of Father’s services and acknowledged that Father was unable to care for X.B. without assistance. Father’s counsel told the court that the issue to be contested was not the termination of Father’s services, but X.B.’s permanent plan-whether X.B. should be adopted with J. or separated from J. and placed in a legal guardianship with E.M. Father wanted E.M. to be appointed X.B.’s legal guardian, and E.M. was willing to serve as guardian. Minor’s counsel again objected to separating the children.

County counsel pointed out that, though the children’s foster parents were initially interested in adopting both of them, they were currently interested in adopting only X.B. Minor’s counsel responded that there were “plenty” of families willing to adopt both children. The court said the parties were “getting way ahead” of themselves because neither parent’s services had been terminated and the children’s permanent plans were to be determined at a section 366.26 hearing. Still, the court again continued the 18-month review hearing to August 6 so the foster parents could be present, and indicated it would then consider placing X.B. with E.M., at least temporarily, pending a section 366.26 hearing.

At the continued 18-month review hearing on August 6, the court terminated Father’s and the mother’s services and set a section 366.26 hearing for both children. Father’s counsel did not contest terminating Father’s services, based on his understanding that the department was still recommending legal guardianship for X.B. with E.M. The department was authorized to place X.B. with E.M., pursuant to an “approval packet” pending the section 366.26 hearing.

At the August 6 hearing, minor’s counsel told the court he would “probably have to declare a conflict [of interest]” in representing both children in the event the department continued to recommend that the children be permanently separated-that J. be adopted by his paternal grandparents and that X.B. be placed in legal guardianship with E.M. Shortly before the August 6 hearing, the department reported that the children did not appear to be “strongly bonded” and separating them would not be detrimental to either of them.

In terminating Father’s services on August 6, the court found Father had failed to make substantial progress in his case plan though he had regularly participated in his case plan. The court found reasonable services had been offered or provided to Father and placing X.B. in Father’s care would be detrimental to the child. The court reduced Father’s visitation with X.B. to once per week, but authorized the department to liberalize the visits to include overnight and weekend stays in E.M.’s home. E.M. was ordered to supervise the visits and not leave X.B. alone with Father.

D. The Section 366.26 Hearings

The court conducted the first of several continued section 366.26 hearings for both children on December 4, 2009. The court on that date declined a request by Father’s counsel to conduct a separate hearing for X.B. on the ground the mother was not present and the department had been unable to serve her with notice of the December 4 hearing. The court continued the permanency hearing for both children to January 21. By approval packet, the department was authorized to place each child with paternal relatives.

On December 4, the department was still recommending that X.B. be placed in a legal guardianship with E.M., and minor’s counsel was still objecting to separating the children. E.M. was still willing to serve as X.B.’s legal guardian, and X.B.’s foster parents were willing to adopt him if, for any reason, E.M. was unable to serve as his guardian. E.M. and the foster mother had a good rapport and were cooperating in matters concerning X.B.

X.B. was nearly two years old and developing normally. Since August 2009, X.B. had been staying with E.M. and Father on weekends, and his paternal aunt and uncle, ages 13 and 19, also lived in E.M.’s home. X.B. had spent a significant amount of time with Father and E.M.’s larger family, though he and J. had been living with their current foster parents since February 2008. X.B. was attached to his foster parents and had recently begun to seek out J.

On December 23, 2009, the court granted the foster parents’ recently filed petition seeking de facto parental status of both children, and appointed counsel for the de facto/foster parents. Minor’s counsel argued in favor of the petition because the foster parents had had custody of both children for “a very long period of time” and were now willing to adopt both of them.

On January 21, 2010, the permanency hearings were set contested and continued to March 1. On January 21, minor’s counsel again argued the children should be adopted together, and expressed the view that Father was “in no condition to take care of... one child.” Father’s counsel urged the court to place X.B. with E.M. pending the contested permanency hearing. The department supported Father’s request and alternatively requested that Father be allowed more overnight visits with X.B. Minor’s counsel objected. The court declined to place X.B. with E.M. or increase Father’s visits pending the permanency hearings for both children.

Meanwhile, the department discovered that J.’s paternal grandfather had a criminal history that rendered him ineligible to adopt J. under Texas law. J.’s biological father was still incarcerated in Texas. That left no relatives available to adopt J., but his de facto/foster parents were still willing to adopt both J. and X.B. The department reported that the children were still not strongly bonded but believed they “would probably develop a strong sibling relationship” over time. Nevertheless, the department still recommended appointing E.M. as X.B.’s legal guardian and placing J. for adoption.

At a pretrial settlement conference on February 22, and in response to the court’s inquiries, county counsel explained why the department was recommending different permanent plans for each child. Counsel explained that, though the de facto/foster parents were currently willing to adopt both children, they had previously been unwilling to adopt J. without also adopting X.B., and this caused the department to question their commitment to adopt either child. On February 22, the section 366.26 hearings were continued from March 1 to April 8 in order to allow the department time to “flesh[] out” its concerns regarding the de facto parents’ commitment to adopt both children, and also to allow the department to assess a new home in which E.M. and Father were now living.

Then, in a March 25 addendum report, the department changed its permanent plan recommendation for X.B. from legal guardianship and recommended that both children be adopted. The department was by then satisfied the de facto/foster parents were committed to adopting both children, and the children were becoming increasingly bonded to each other and to their de facto/foster parents. Also, the department reported that in February 2010 E.M. had moved from her longtime residence in order to find a “smaller, cheaper” home, and no longer had a permanent home.

A separate section 366.26 hearing for X.B. was held on May 20, 2010. After the court accepted several department reports into evidence, Father’s counsel called Social Worker Candice Cloud (SW Cloud) to testify and questioned her concerning the reasons the department was now recommending that X.B. be adopted. SW Cloud was assigned to X.B.’s case in January 2008. Around March 8, 2010, she and other department staff determined that X.B. should be adopted with J., based on the increasing bond between the children. SW Cloud explained that although X.B. had a bond with Father and E.M., both X.B. and J. had a parent/child bond with their de facto/foster parents and she believed separating the children would be detrimental to both of them.

In addition, SW Cloud testified that E.M. had recently moved in with her sister, though the move was not a “big factor” in the department’s new recommendation that the children be adopted together. The department had been unable to assess E.M.’s new home for placement because E.M.’s sister had not contacted the department and had not been “live scanned.” After E.M. moved into her sister’s home in February 2010, apparently with Father and Father’s two siblings, the department stopped allowing X.B. to have overnight visits with E.M. or Father.

SW Cloud did not believe X.B. would suffer any detriment if Father’s parental rights were terminated, though she admitted she had not observed Father and X.B. together in approximately six months and had never observed them together in E.M.’s home, only in the department offices. She believed X.B. was bonded to Father, but not strongly.

Father’s counsel next called E.M. to testify. E.M. explained that she and Father were temporarily living with her sister in her sister’s four-bedroom home because it was a cheaper place to live. Since E.M. moved, she would pick up X.B. for all day visits on Saturdays and Sundays, but not for overnight visits. Father was a “good father” to X.B.; he played with, fed, and changed X.B.

In closing argument, county counsel noted that Father was not contesting whether X.B. was adoptable, and argued Father had not met his burden of showing that any exception to the adoption preference applied. Minor’s counsel agreed with county counsel and emphasized it would be “cruel and detrimental” to separate the children. Father’s counsel suggested keeping both children with their de facto/foster parents and allowing them to adopt J. but assume legal guardianship over X.B. That way, Father’s counsel argued, Father could still be a part of X.B.’s life. Father’s counsel emphasized that Father had a strong bond with X.B. and much support from E.M. and his extended family.

The juvenile court took the matter under submission. On May 27, 2010, the court found, based on clear and convincing evidence, that X.B. was adoptable, terminated Father’s parental rights, and found the child-benefit exception did not apply to Father’s relationship with X.B.

III. DISCUSSION/CLAIMS ON APPEAL

A. Father’s Due Process Claim Lacks Merit

Father claims his parental rights were terminated in violation of his fundamental liberty interest or due process rights in X.B. because the court never found by clear and convincing evidence that he was an “unfit” parent. Parents have a fundamental liberty interest in the care, companionship and custody of their children, and a concomitant “vital interest in preventing the irretrievable destruction of their family life.” (Santosky v. Kramer (1982) 455 U.S. 745, 753, 758-760 (Santosky).) Accordingly, due process requires that a court find a parent is “unfit” to raise his or her child before it may terminate the parent’s rights in a juvenile dependency proceeding. (Id. at pp. 759-760, 769-770; In re G.S.R. (2008) 159 Cal.App.4th 1202, 1210 (G.S.R.).) The evidence supporting the unfitness finding must be at least clear and convincing. (Santosky, supra, at pp. 747-749.) And until the state has properly demonstrated parental unfitness, the juvenile court may assume that “the child and his parents share a vital interest in preventing erroneous termination of their natural relationship.” (Id. at p. 760, fn. omitted; G.S.R., supra, at pp. 1210-1211.)

California’s dependency scheme comports with Santosky’s unfitness requirement because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court has already made “multiple specific findings” of parental unfitness. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253 (Cynthia D.); In re Gladys L. (2006) 141 Cal.App.4th 845, 848 .) As explained in Cynthia D.: “Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard [citation]; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) “Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.” (Cynthia D., supra, at p. 253; In re Marilyn H. (1993) 5 Cal.4th. 295, 307-309 [dependency scheme has “significant safeguards” to protect parental rights and, when “viewed as a whole, ” provides parents with “due process and fundamental fairness while also accommodating the child’s right to stability and permanency.”].)

California’s dependency scheme no longer uses the term “parental unfitness, ” but “instead requires the juvenile court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child.” (In re P.A. (2007) 155 Cal.App.4th 1197, 1211.) Detriment is “an infinitely more precise concept” than unfitness because it “ensures the juvenile court’s focus is properly centered on the absence or breakdown of a relationship between a particular parent and a particular child.” (In re Cody W. (1994) 31 Cal.App.4th 221, 225.) “Unfitness, ” on the other hand, “can suggest an individual is not a proper parent under any circumstances” (ibid., fn. omitted) and does not account for “the unique circumstances” of the particular parent-child relationship (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3). A detriment finding is essentially equivalent to an unfitness finding, for purposes of the parent’s due process rights. (See In re Jasmon O. (1994) 8 Cal.4th 398, 423.)

At the combined jurisdictional and dispositional hearing on January 31, 2008, the court expressly found by clear and convincing evidence that placing X.B. in Father’s care would be detrimental to X.B.’s safety, protection, and physical or emotional well-being. (§ 361.2, subd. (a) [after child is ordered removed from custodial parent, court must place child with noncustodial parent if that parent requests custody, unless court finds by clear and convincing evidence that placing child with noncustodial parent would be detrimental to the child].) Thereafter, the court found at each subsequent review hearing, by either a preponderance of the evidence, as the statutes required, or by the elevated standard of clear and convincing evidence, that placing X.B. in Father’s care would “create a substantial risk of detriment” to the child’s safety, protection, or physical or emotional well being. (§§ 366.21, subds. (e), (f), 366.22, subd. (a) [detriment findings must be based on preponderance of evidence].) On their face, these detriment findings are sufficient to support terminating Father’s parental rights. (Cynthia D., supra, 5 Cal.4th at p. 253.)

Father argues, however, that none of the court’s detriment findings are supported by substantial evidence but are instead based solely and improperly on his developmental disability. Father relies on two cases, G.S.R., supra, 159 Cal.App.4th 1202 and P.C., supra, 165 Cal.App.4th 98, where termination orders were reversed on the ground the courts never made unfitness or detriment findings based on legally sufficient, substantial evidence. Both cases are distinguishable, for the reasons we explain.

We address the merits of Father’s due process claim while assuming without necessarily deciding that it is not barred by the so-called “waiver rule” or jurisdictional bar of section 395. Generally, an unappealed disposition or postdisposition order is “‘“final and binding”’” after the time for appeal from the order has passed and may not be attacked on an appeal from a later order (In re S.B. (2009) 46 Cal.4th 529, 532; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018) even if the parent claims his or her constitutional rights have been violated in prior orders (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150-1152 [applying waiver rule to mother’s deprivation of counsel and ineffective assistance claims at detention, 18-month review, and other prior hearings on mother’s appeal from termination order]; see also § 366.26, subd. (1) [barring appeal from order setting permanency hearing unless petition for extraordinary writ was timely filed, addressed issues to be challenged, and was summarily denied or otherwise not decided on merits]). Father did not appeal from the court’s disposition order or any of its orders issued prior to the termination order. Nor did Father petition for an extraordinary writ following the setting of the permanency hearing. Thus, his due process claim appears to be barred by the so-called waiver rule of section 395, which we believe is more aptly described as a jurisdictional bar.

G.S.R. involved a noncustodial father, Gerardo, who was declared the presumed father of his two sons shortly after the detention hearing. (G.S.R., supra, 159 Cal.App.4th at p. 1206.) The boys were taken into protective custody after their mother was arrested for having sex with a minor. (Id. at p. 1205.) No section 300 allegations were alleged or proved against Gerardo, and he was proclaimed to be “nonoffending.” (G.S.R., supra, at p. 1207.) Gerardo participated in court-ordered services, including Alcoholics Anonymous meetings, and he visited with and sought custody of his sons, but was never able to obtain affordable housing that could accommodate them. (Id. at pp. 1206-1207.) At the review hearings, the court determined it would be detrimental to place the boys with Gerardo. (Id. at pp. 1207-1208.) At the section 366.26 hearing, Gerardo argued his due process rights would be violated if his parental rights were terminated because he was a nonoffending parent who had never been found unfit. (G.S.R., supra, at p. 1209.) The juvenile court rejected Father’s claim and terminated his parental rights. (Id. at pp. 1209-1210.)

On appeal, the court concluded that the juvenile court violated Gerardo’s due process rights by terminating his parental rights without ever having found he was an unfit parent. (G.S.R., supra, 159 Cal.App.4th at pp. 1211-1212.) The court pointed out that Gerardo had always been involved in his sons’ lives and had provided them with financial support even when he was homeless. (Id. at p. 1212.) Moreover, the court reasoned that the record “strongly suggest[ed] the only reason Gerardo did not obtain custody of the boys was his inability to obtain suitable housing for financial reasons. But poverty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction.” (Ibid., fn. omitted.) The court also pointed out that section 300, subdivision (b) expressly states: “‘[N]o child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family....’ Put differently, indigency, by itself, does not make one an unfit parent....” (G.S.R., supra, at p. 1212.)

The court in G.S.R. further concluded that the evidence was insufficient to support the juvenile court’s various detriment findings, principally because Gerardo’s poverty and lack of suitable housing for his sons was an insufficient reason to conclude he was incapable of parenting them, and the agency never made any effort to assist Gerardo in obtaining affordable housing. (G.S.R., supra, 159 Cal.App.4th at pp. 1213-1214.) The court reversed the termination order and remanded the matter to the juvenile court to determine whether there were any legally sufficient grounds, at the time of remand, to find it would be detrimental to return the boys to Gerardo. (Id. at p. 1215.)

In P.C., the court took G.S.R. one step further in reversing a termination order for an “offending” parent who had complied with her case plan and did everything she could do to regain custody of her children but who, like Gerardo in G.S.R., was unable to obtain affordable housing for her children. The court framed the issue as whether the mother’s “poverty alone” or her inability to obtain suitable housing for her children was a sufficient ground to deprive the mother of her parental rights to her children. (P.C., supra, 165 Cal.App.4th at pp. 99, 103.) By the time of the 18-month review hearing, the mother had completed her case plan and the social worker testified that her lack of suitable housing was the only reason the children could not be returned to her care. (Id. at p. 101.) Still, the juvenile court terminated the mother’s services and found by clear and convincing evidence that returning the children to her care “‘would create a substantial risk of detriment’” to their “‘physical and emotional well-being.’” (Id. at p. 102.) Then, at the section 366.26 hearing, the social worker testified that the mother’s “inability to obtain suitable housing” was the only reason the agency was recommending the children be adopted. (P.C., supra, at p. 102.)

At the jurisdictional hearing in P.C., the juvenile court sustained allegations that the mother had physically abused her children, the father had committed acts of domestic violence against the mother, and the mother had left the children with a caretaker without means of support, knowledge of the mother’s whereabouts, or the time of her return. (P.C., supra, 165 Cal.App.4th at p. 100.)

In reversing the termination order, the P.C. court found G.S.R. “on point” because, like Gerardo in G.S.R., the mother’s inability to obtain suitable housing was the only basis for the juvenile court’s detriment findings. (P.C. supra, 165 Cal.App.4th at p. 106.) The court pointed out that if the mother had not completed her case plan and corrected her behavior that led to the children’s dependency, it would have agreed that the detriment findings were “tantamount to a finding of parental unfitness.” (Ibid.) But because the mother had completed her case plan, corrected her behavior, and the social worker had not reasonably assisted her in obtaining suitable housing, the court concluded the juvenile court’s detriment findings, and its findings the agency had provided or offered reasonable services to the mother, were not supported by substantial evidence. (Ibid.)

Father argues his case is indistinguishable from G.S.R. and P.C. because his developmental disabilities or mild mental retardation, like poverty or an inability to afford suitable housing for one’s children, is not a legally sufficient basis for detriment findings and was the sole basis for the juvenile court’s repeated findings that X.B. would suffer detriment if placed in Father’s care. Father also claims that, like the parents in G.S.R. and P.C. who were not offered or provided with reasonable assistance in obtaining suitable housing for their children, he was not offered or provided with reasonable services to enable him to overcome his disabilities and learn to properly care for X.B. on his own. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1327-1330 [agency failed to offer the mother any services to alleviate the effects of her developmental disability and enable her to properly care for her children]; In re Adrianna P. (2008) 166 Cal.App.4th 44, 59 [reunification services must be “carefully tailored to meet the needs of the child and family”].)

Father’s argument misses the mark because the record amply demonstrates that none of the juvenile court’s various detriment findings were based solely on Father’s developmental disabilities or mild mental retardation per se. Instead, they were based on Father’s inability to properly care for X.B. on his own- despite his having been offered and provided reasonable services designed to enable him to overcome his disabilities and meet this goal from the inception of the proceedings. By contrast, the detriment findings in G.S.R. and P.C. were based solely on the parent’s poverty and inability to afford suitable housing for their children, and the agencies in G.S.R. and P.C. never offered the parents reasonable assistance in obtaining suitable housing. (G.S.R., supra, 159 Cal.App.4th at p. 1213; P.C., supra, 165 Cal.App.4th at pp. 105-106.)

To be sure, the evidence that Father was consistently unable to care for X.B. on his own-despite his having been offered reasonable services designed to enable him to overcome his disabilities and meet this goal-was reflected in the department’s reports throughout the proceedings. Shortly after X.B. was detained in January 2008, the department offered various services to Father, including parenting classes and individual counseling. Father completed a parenting class in March 2008 but resisted participating in counseling, saying he did not feel he needed counseling. Father did not participate in counseling until February 2009, more than one year after the dependency proceedings began. By June 2009, he had completed 12 sessions which addressed his “ability to understand child development, ” his “ability to recognize when his child needs protection, ” and his “capacity to protect his child.” In May 2009, Father’s counselors reported he “struggle[d]” with understanding the child development material and could benefit from further sessions. Then, in July 2009, shortly before the 18-month review hearing on August 6, the social worker reported Father’s “learning disabilities” appeared to “limit his ability to parent effectively without assistance, ” and on that basis recommended the juvenile court find that placing X.B. in Father’s care would “create a substantial risk of detriment” to X.B.’s physical or emotional well-being.

Thus, substantial evidence shows that reasonable services designed to meet the needs of Father and X.B. by enabling Father to overcome his limitations and learn to care for X.B. on his own were offered to Father throughout the 18-month reunification period. (In re Christina L. (1992) 3 Cal.App.4th 404, 413-418 [reasonable services offered to developmentally disabled mother]; In re Misako R. (1991)2 Cal.App.4th 538, 544-547 [reasonable services offered to mother with “intellectual deficiencies and language difficulties”].) Substantial evidence also supports the juvenile court’s detriment findings, made by clear and convincing evidence at the dispositional hearing and by a preponderance of the evidence or clear and convincing evidence at each review hearing, that X.B. would suffer detriment if placed in Father’s care. (§§ 361.2, subd. (a), 366.21, subds. (e), (f), 366.22, subd. (a).) Father did not take advantage of the department-offered individual counseling services for over 12 months, and he was unable to sufficiently benefit from these services or learn to care for X.B. within the extended 18-month reunification period. (In re Marilyn H., supra, 5 Cal.4th at pp. 308-309 [parents are entitled to no more than 18 months of reunification services, and once services are terminated “the focus shifts to the needs of the child for permanency and stability.”].) Given these circumstances, Father’s inability to learn to care for X.B. by the time of the 18-month review hearing indicates his “lack of interest or capacity rather than the inadequacy of the services offered.” (In re Laura F. (1983) 33 Cal.3d 826, 839.)

Given his developmental disabilities, Father argues the department was obliged to provide him with “in-home parenting services, ” and in failing to offer such services failed to tailor his case plan to meet his and X.B.’s needs. Father offers no evidence that “in-home parenting services” were available from the department, the Inland Regional Center, or any other source, however. And despite his developmental disabilities, it was incumbent upon Father to seek out and request “in-home parenting services” or any other services he believed may have benefited him to the extent such services were available. (In re Christina L., supra, 3 Cal.App.4th at p. 417.) The record does not indicate that Father ever asked the department, the Inland Regional Center, or any other entity to provide him with “in-home parenting services.” Nor does the record indicate that such services were available from any source. The record does indicate that Father was receiving employment referrals from the Inland Regional Center, and could have asked the Inland Regional Center to provide him with “in-home parenting services, ” in the event such services were available.

Lastly, Father claims the court’s b-2 and b-4 jurisdictional findings against him are not supported by sufficient evidence. This argument is inapposite to his claim that his due process rights were violated because the court never made legally sufficient detriment or reasonable services findings. X.B. could have been declared a dependent based solely on the b-1 finding the mother had a substance abuse problem that interfered with her ability to parent. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [“a jurisdictional finding good against one parent is good against both.”].) And a jurisdictional finding, standing alone, is not an adequate finding of parental unfitness because it is made based on a preponderance of evidence. (In re P.A., supra, 155 Cal.App.4th at p. 1212; § 355.) Thus, even if no jurisdictional findings had been made against Father, the juvenile court’s detriment and reasonable services findings were sufficient, for due process purposes, to support its order terminating parental rights.

B. The Failure to Appoint Independent Counsel for X.B. Did Not Prejudice Father

Father claims the juvenile court erred in failing to appoint independent counsel for X.B. after it became apparent that X.B.’s best interests conflicted with J.’s., and there is a reasonable probability Father’s parental rights to J. would not have been terminated but for the error. We disagree. Even if Father has standing to raise this issue (In re Daniel H. (2002) 99 Cal.App.4th 804, 811 [Fourth Dist., Div. Two]) and even if counsel for X.B. and J. had an actual conflict of interest and independent counsel should have been appointed for X.B. (In re Celine R. (2003) 31 Cal.4th 45, 58), Father has not demonstrated a reasonable probability his parental rights to X.B. would not have been terminated had separate counsel been appointed for X.B. (id. at p. 60).

Attorney Stern represented X.B. and J. throughout the proceedings. Pending the section 366.26 hearing, he objected to placing the children in separate homes (i.e., placing X.B. with E.M. and placing J. with paternal relatives) and consistently advocated placing the children for adoption together. By contrast, the department was recommending that X.B. be placed in a legal guardianship with E.M. The department changed its recommendation to adoption for X.B. in March 2010, only two months before the permanency hearing for X.B. By March 2010, two critical factors had changed: (1) the de facto/foster parents, with whom X.B. and J. had been living since February 2008, were now willing to adopt J. as well as X.B., and (2) X.B. and J. were becoming increasingly bonded. The children were also very bonded with their de facto/foster parents. X.B. and Father also had a bond, but it was not stronger than X.B.’s bond with his foster parents.

Given these new circumstances, it is not reasonably probable that the juvenile court would have placed X.B. in a legal guardianship with E.M. and declined to terminate Father’s parental rights to X.B.-even if separate counsel had been appointed for X.B. at any point during the proceedings. The de facto/foster parents’ willingness to adopt both children, the children’s incipient sibling bond, and the lack of a significant bond between Father and X.B. were the critical factors that led the court to conclude that X.B.’s interests would best be served by placing him for adoption with J. It is not reasonably probable that separate counsel for X.B. would have changed this result, even if separate counsel had advocated a guardianship for X.B. over adoption, because separate counsel would not have changed any of these underlying facts.

C. The Court Properly Determined the Child Benefit Exception Did Not Apply

Father claims the juvenile court erroneously failed to conclude that the “child benefit” exception to the adoption preference applied to his relationship with X.B. (§ 366.26, subd. (c)(1)(B)(i).) Father had the burden of demonstrating the exception applied. (In re Angel. B. (2002) 97 Cal.App.4th 454, 466.) He claims he met this burden by showing he had a parental bond with X.B., the preservation of which outweighed the benefits to X.B. of being adopted. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) We disagree.

Though the department conceded that X.B. had a bond with Father, Father did not demonstrate that the bond was parental or stronger than the bond X.B. had with his de factor/foster parents, and X.B. was only two and one-half years old at the time of the hearing. For these reasons, Father did not meet his burden of demonstrating that the termination of his parental rights would have been detrimental to X.B., or, more specifically, that X.B. would have been “deprive[d]... of a substantial, positive emotional attachment such that [X.B.] would be greatly harmed” by the termination of Father’s parental rights. (In re Angel B., supra, 97 Cal.App.4th at p. 466.)

IV. DISCUSSION/HABEAS PETITION

In his petition for a writ of habeas corpus, Father claims his trial counsel, Attorney David Levy, rendered ineffective assistance in failing to (1) contest the jurisdictional allegations against Father, (2) request that Father be given custody of X.B. at the 12- and 18-month review hearings, (3) claim the department did not provide Father with reasonable reunification services tailored to his developmental disability, (4) object to supervised visitation by E.M., and (5) discover and introduce evidence “favorable” to Father’s disability, specifically, evidence that Father was capable of parenting X.B. on his own. Father argues there is a reasonable probability his parental rights would not have been terminated but for any one of these alleged deficiencies. We conclude the petition fails to make a prima facie showing of ineffective assistance, or a reasonable probability Father’s parental rights would not have been terminated but for any of these alleged deficiencies. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1259-1260, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) We therefore deny the petition.

A. The Evidence Adduced on the Writ Petition

In considering Father’s writ petition, we grant Father’s request that we take judicial notice of the record on his appeal from the termination order. (Evid. Code, § 452, subd. (d); Cal. Rules of Court, rule 8.252(a).) We also consider additional evidence Father has adduced in support of the petition, including declarations from Father’s trial counsel, Attorney Levy, E.M., and Father, and other evidence described below.

In his declaration, Father states he does not believe he has a disability “which would prevent” him from safely taking care of X.B. He recalls the social worker thought he had a disability, and Attorney Levy never asked him for any “documents or paper work” about “any disability.” In her declaration, E.M. also states Attorney Levy never asked her for any “documents or paper work” concerning Father’s disability. She also states that when Father was in high school, one of his teachers told her Father was “having difficulty reading, ” and Father was “put in a different class” so he “could get more assistance.”

For his part, Attorney Levy states he did not contest the b-2 jurisdictional allegation that Father was not capable of providing for X.B.’s “basic needs, ” because he believed it to be true and supported by the evidence. He did not request custody of X.B. with Father at the 12- and 18-month review hearings because he did not believe Father was able to care for X.B. on his own, and the department was still recommending that E.M. be appointed the child’s guardian. He did not petition for an extraordinary writ following the setting of the permanency hearing on August 6, 2009, also because the department was still recommending guardianship and he believed the guardianship plan would best serve Father’s interests.

Father submits a 10-page document identified as Social Security Administration, Administrative Law Judge, Jay E. Levine, dated April 13, 2009. The document shows that on April, 13, 2009, the Social Security Administration upheld its prior, January 1, 2008, determination that Father was not disabled within the meaning of section 1614(a)(3)A) of the Social Security Act, and was denied further SSI benefits effective January 1, 2008 (the SSA decision).

The SSA decision was never presented into evidence in the juvenile court, though it was apparently available prior to the 18-month review hearings beginning in July 2009. Father submits the SSA decision shows he was capable of caring for his own needs and the needs of X.B. throughout the proceedings. We disagree that the SSA decision reveals anything of significance concerning Father’s developmental disability that was not effectively reflected in the department’s initial detention and jurisdiction reports or not, apparently, known to Attorney Levy from the inception of the proceedings.

E.M. and Father testified at the hearing before Judge Levine on January 14, 2009. Father claimed he suffered from a “learning disability” and had difficulty with spelling, reading, writing, and concentrating and following directions.

In the SSA decision, Judge Levine concluded Father was capable of caring for his own personal needs. He could eat, dress, and bathe himself, “prepare simple meals using the microwave, ” and perform household chores. More generally, he was able to perform “simple 1 or 2-step... repetitive tasks, ” and he could “understand, remember, and follow simple instructions....” He could print words and sentences legibly using longhand, and he could read and comprehend complex sentences, stories, and conversations. He could “keep his attention focused on a single activity” for about 30 minutes. He was capable of using public transportation.

Father was originally granted SSI benefits in February 2005 based on a finding his mental impairments met the criteria under “the Childhood listings for mental retardation.” He had a full scale IQ of 72 and “learning disorders including dyslexia, dysgraphia, and dyscalculia.” He had the “severe impairment” of “borderline mental functioning.” He had been in special education classes due to “cognitive and academic delays, ” and he was “a consumer of Inland Counties Regional Center [for] mild mental retardation.”

B. Analysis

The crux of Father’s ineffective assistance claim is that he was capable of caring for himself and X.B., either on his own or with services designed to alleviate the effects of his developmental disability and assist him in parenting X.B. On this basis, Father argues “any reasonably competent attorney” would have contested the b-2 jurisdiction allegation, objected to the reasonable services and detriment findings, objected to supervised visitation and, more generally, pursued a strategy of placing X.B. in Father’s custody. Father maintains that, had Attorney Levy pursued a custody strategy, supported by the SSA decision and other “favorable evidence” concerning his disability, there is a reasonable probability he would have obtained custody of X.B. or, at the very least, his parental rights to X.B. would not have been terminated. We disagree.

The SSA decision sheds no light on the nature and extent of Father’s disability that were not reflected in the detention and jurisdiction reports and known to Attorney Levy from the inception of the proceedings. The SSA decision is not “favorable” to Father, as Father argues, but indicates he continued to have “moderate” difficulties in concentrating and focusing. The May 19, 2009, therapeutic report from Father’s counselors addresses the question of Father’s ability to care for X.B. more specifically. It indicated Father was not capable of caring for X.B. on his own and could have benefited from additional counseling, which Father failed to pursue until February 2009, more than one year after the proceedings began. Nor does Father identify what other “favorable evidence” Attorney Levy reasonably should have but failed to discover concerning Father’s disability. Other than “in-home parenting services, ” which Father never requested and which were apparently not available, Father does not identify what services Attorney Levy should have but did not request on his behalf and which reasonably could have enabled Father to care for X.B. on his own.

For the reasons we explained in rejecting Father’s due process claim, the evidence presented at each stage of the proceedings supported the court’s reasonable services and detriment findings. Nothing in the writ petition shows that any of these findings, or the court’s ultimate order terminating parental rights, would have been different or more favorable to Father had Attorney Levy pursued a “custody strategy” rather than a strategy of a legal guardianship with E.M.

V. DISPOSITION

The orders terminating parental rights and placing X.B. for adoption are affirmed.

We concur: Richli Acting P.J., Miller J.

In any event, the waiver rule or jurisdictional bar of section 395 is not absolute and will not be enforced if “due process forbids it” (In re Janee J. (1999) 74 Cal.App.4th 198, 208) or when the error complained of is “fundamental” and occurred notwithstanding the procedural safeguards built into the dependency statutes (ibid.; In re S.D. (2002) 99 Cal.App.4th 1068, 1079-1080). Indeed, in several cases, the courts have declined to apply the so-called waiver rule to due process claims, raised for the first time on appeals from termination orders, that parental rights were terminated without proper or sufficient “unfitness findings” at prior stages of the proceedings. (In re Gladys L., supra, 141 Cal.App.4th at p. 849 [father appeared at detention then disappeared until permanency hearing but court never effectively found he was unfit]; G.S.R., supra, 159 Cal.App.4th at p. 1212 [detriment or implied unfitness findings prior to termination order were impermissibly based solely on parent’s inability to afford suitable housing for children]; In re P.C. (2008) 165 Cal.App.4th 98, 107 (P.C.) [same]; cf., In re P.A., supra, 155 Cal.App.4th at pp. 1211-1212 [distinguishing In re Gladys L. on ground the juvenile court’s prior detriment and reasonable efforts findings were sufficient to support termination order]; In re A.S. (2009) 180 Cal.App.4th 351, 363 [following In re P.A. and concluding prior detriment finding was sufficient to support termination order].) We therefore consider Father’s due process claim on its merits.


Summaries of

In re X.B.

California Court of Appeals, Fourth District, Second Division
Jan 21, 2011
No. E050999 (Cal. Ct. App. Jan. 21, 2011)
Case details for

In re X.B.

Case Details

Full title:In re X.B., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jan 21, 2011

Citations

No. E050999 (Cal. Ct. App. Jan. 21, 2011)