California Court of Appeal Jan 17, 2014 No. E058738Unpublished
Filed 1/17/14 In re B.V. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.V., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E058738
Plaintiff and Respondent, (Super.Ct.No. J237589)
v. OPINION
R.V. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Respondent, father.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and
Respondent, mother.
1
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother and father (parents) appeal from the juvenile court order terminating their
parental rights to their son, B.V. (born in 2006) under Welfare & Institutions Code
currently provides that ‘An order by the court that a hearing pursuant to this section be
held is not appealable at any time unless’ a timely writ petition was filed, which
21
‘substantively addressed the specific issues to be challenged and supported that challenge
by an adequate record’ and which ‘was summarily denied or otherwise not decided on the
merits.’ . . . ‘[S]ection 366.26 subdivision (l) bars direct appeals from orders setting a
section 366.26 hearing. The appellate court explained that its statutory interpretation is in
keeping with recent legislative efforts to expedite finality in dependency proceedings and
to achieve permanency for children in the system. [Citation.] In In re Anthony B.
[(1999)] 72 Cal.App.4th [1017], 1023, the Court of Appeal extended “the bar of section
366.26, subdivision (l) [to] all orders issued at a hearing in which a setting order is
entered.”’” (In re Tabitha W., supra, 143 Cal.App.4th at pp. 815-816.)
At the 18-month hearing on July 26, 2012, the juvenile court advised parents of
their writ rights. The court told parents that if they disagreed with the court’s ruling, they
must file a petition for extraordinary writ in order to preserve their right to appeal the
decision, and this must be done within seven days. Parents did not file a petition for
extraordinary writ and therefore, under section 366.26, subdivision (l), they did not
preserve their right to object to the juvenile court not holding a 12-month review hearing
before entering its order on July 26, 2012, terminating reunification services and setting
the section 366.26 hearing.
IV
INEFFECTIVE ASSISTANCE OF COUNSEL CHALLENGE
Father contends he received ineffective assistance of counsel (IAC) because his
attorney failed to object to the juvenile court setting and holding an 18-month review
22
hearing, without having held a 12-month review hearing.
Hoping to circumvent the waiver rule and forfeiture of his objection on appeal to
skipping the 12-month hearing, father contends he received IAC because his attorney (1)
failed to object during the hearing on January 10, 2012, to the juvenile court setting an
18-month review hearing, rather than a 12-month review hearing, (2) conceded the
hearing on July 26, 2012, was an 18-month hearing governed by section 366.22, and (3)
conceded father could not care for B.V. because father was living with grandfather.
As the court in In re Carrie M. (2001) 90 Cal.App.4th 530, noted, “A claim of
ineffective assistance of counsel in a dependency matter is generally cognizable in the
Court of Appeal on a petition for writ of habeas corpus. [Citation.]” (Id. at p. 533.) In
the instant case, father did not file a petition for writ of habeas corpus. We recognize the
rule requiring such a writ petition is not absolute. There is “an exception in cases where
‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction
[citations.]” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254.) The exception does not
apply here because there was a satisfactory explanation for father’s counsel not objecting
to skipping the 12-month hearing. Had the court set a 12-month hearing instead of an 18-
month hearing, the hearing would likely have been heard sooner, resulting in the
probability the court would terminate services even sooner. Furthermore, there was
reason for not objecting at the 18-month hearing because, by the time the hearing was
held, B.V. had been removed for over 17 months and it was highly unlikely the court
23
would extend reunification services, even if the court deemed the hearing a 12-month
hearing.
As stated in Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510, “. . .
the dependency law does not establish a minimum period of reunification. Rather,
emphasis is on ‘setting outside limits to the length of time a child may be kept in foster
care before a permanent plan is established.’ (In re David H., supra, 33 Cal.App.4th at p.
388.) Summing up this view, Seiser states: ‘[T]he statutory mandate for limiting
reunification services to a maximum of 18 months from the date of the original removal
will control over any conflict in the statutes.’ (Seiser[& Kumli, Cal. Juvenile Courts
Practice and Procedure (Lexis Nexis 2005)] § 2.153, p. 2-295.) This is because at the 18-
month benchmark, the focus of a dependency proceeding, shifts to the child’s needs for
permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)”
Although in several cases a juvenile court extended services beyond the 18–month
statutory period, this has occurred “only under extraordinary circumstances ‘involv[ing]
some external factor which prevented the parent from participating in the case plan.’” (In
re Denny H., supra, 131 Cal.App.4th at p. 1510, quoting Andrea L. v. Superior Court
(1998) 64 Cal.App.4th 1377, 1388 [affirming lower court’s refusal to so extend
services].) In the absence of extraordinary circumstances, “the juvenile court’s extension
of services beyond 18-months was an abuse of discretion and in excess of its jurisdiction,
as limited by statute.” (Denny H., at p. 1511.)
24
Here, at the time of the 18-month hearing, B.V. had been removed from his
parents for 17 months and the trial court found that reasonable services had been
provided. The court also found it was not likely B.V. would be returned to parents within
the statutory time frame; custody by parents continued to be detrimental to B.V. and
would not be in his best interests; and parents failed to participate regularly and make
substantive progress in their treatment plans. Under these circumstances, father’s
attorney could have reasonably decided not to object to the court skipping the 12-month
hearing because the outcome likely would have been the same or even worse in the event
the 12-month hearing was heard sooner, with the court terminating services at that time.
(In re Denny H., supra, 131 Cal.App.4th at p. 1511.)
There was also a satisfactory explanation for father’s counsel conceding custody
with father was inappropriate at the time of the 18-month hearing. Father could not have
custody of B.V. because father was living with grandfather. Grandfather’s home had not
been approved because of his criminal history and he could not visit with B.V. unless
visitation was supervised. Furthermore, it was apparent B.V. would not be placed with
father and it was not likely reunification services would be extended because father had
not completed his case plan. He had stopped going to counseling and he had exhibited
immature, inappropriate behavior and a failure to maintain a parental role while visiting
B.V. Under these circumstances, in which it was apparent the juvenile court would not
place B.V. with father or extend reunification services, it was reasonable for father’s
attorney to concede B.V. could not be placed with father.
25
Since there was a reasonable explanation for father’s attorney not objecting to the
court skipping the 12-month hearing and conceding B.V. could not reside with father,
father’s IAC challenge should have been brought by petition for writ of habeas corpus,
rather than by this appeal.
Furthermore, father’s IAC challenge is not timely. Father’s IAC claim is barred
by the waiver rule because it relates to the January 2012 order and July 26, 2012 referral
order. Therefore, as discussed in the preceding section of this opinion, father was
required to raise his IAC challenge by either a writ petition for extraordinary relief or
writ petition for habeas corpus, challenging the referral order. “The right to habeas
corpus relief is, however, limited by the dependency order to which the claimed
ineffective assistance of counsel relates and the timing of the petition for writ of habeas
corpus. [Citation.]” (In re Carrie M., supra, 90 Cal.App.4th at p. 533, citing In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1667.)
An IAC claim in connection with orders setting the 18-month hearing and the
orders entered at the 18-month hearing, terminating reunification services and setting a
section 366.26 hearing (referral order), may be raised in a timely petition for writ of
habeas corpus or writ petition for extraordinary relief, filed in connection with those
orders. This did not occur. The IAC claims may not be raised by an appeal from an
order terminating parental rights or by a habeas corpus petition filed in connection with
an appeal from an order terminating parental rights. (In re Carrie M., supra, 90
Cal.App.4th at p. 534; In re Meranda P., supra, 56 Cal.App.4th at pp. 1146, 1160-1166.)
26
Citing In re S.D., supra, 99 Cal.App.4th at pages 1079, 1080 and In re Janee J.,
supra, 74 Cal.App.4th at page 208, father argues the waiver rule does not apply because
the failure to hold a 12-month hearing constitutes a “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.” (Janee J., at p.
208.) But, as discussed above, this exception to the waiver rule does not apply because
the failure to hold a 12-month hearing in the instant case did not fundamentally
undermine the statutory scheme and could have been corrected had the omission been
raised properly and at the appropriate time. (Id. at p. 209, In re Carrie M., supra, 90
Cal.App.4th at p. 534; In re Meranda P., supra, 56 Cal.App.4th at pp. 1146, 1160-1166.)
In In re S.D., supra, 99 Cal.App.4th 1068, the mother’s attorney conceded at the
jurisdiction hearing that the court had jurisdiction over S.D. under section 300,
subdivision (g) (failure to provide), solely because mother was incarcerated. But this
alone was not a sufficient basis for finding jurisdiction. Under section 300, subdivision
(g), the court was also required to find that the parent was unable to arrange for
alternative care for the child. The court in S.D. found this fundamental misunderstanding
of the law constituted IAC. Therefore the failure to timely appeal the jurisdiction order
by filing a writ petition did not waive the objection later raised on appeal following
termination of parental rights.
S.D. is distinguishable. Here, father is not challenging the jurisdiction order and
there was no fundamental statutory misinterpretation. The instant case is also not one of
27
those rare cases in which “the appellate record demonstrates ‘there simply could be no
satisfactory explanation’ for trial counsel’s action or inaction.” (In re S.D., supra, 99
Cal.App.4th at p. 1077.) Unlike S.D., this case is not an extraordinary case of IAC,
where there was patent error based on clear misinterpretation of a juvenile dependency
statute. Here, father’s attorney conceded at the 18-month hearing that B.V. could not at
that time be placed with father because father was residing with grandfather, who had a
criminal history, and father had not completed his case plan, including counseling. And
although father’s attorney and the court overlooked skipping the 12-month hearing, there
was no misinterpretation of the law. As discussed above, there were satisfactory reasons
for proceeding with the 18-month hearing at that point and conceding that B.V. could not
be placed with father at that time.
Furthermore, father’s IAC claim lacks merit because he has not established
prejudice. In order to demonstrate IAC, father must show both that the acts of counsel
fell below an objective standard of conduct required of a competent, diligent juvenile
dependency advocate, and that he was prejudiced by counsel’s alleged failures. (In re
Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668; Adoption of Michael D. (1989) 209
Cal.App.3d 122, 136.) Father must thus demonstrate that it is reasonably probable that a
more favorable result would have been reached in the absence of the error. (Kristin H., at
p. 1668.) Father has not established this. It is not reasonably probable the outcome
would have been more favorable had his attorney insisted on a 12-month hearing at the
January 10, 2012, or July 26, 2012, hearings.
28
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
KING J.
29
AI Brief
AI-generated · verify before citing
Holding. The court held that parents forfeited their right to challenge the omission of a 12-month review hearing by failing to object in the trial court and by failing to seek timely writ relief from the order setting the 18-month hearing. Furthermore, the court found any error in skipping the 12-month hearing was harmless.
Issues
Did the juvenile court's failure to hold a 12-month review hearing violate the parents' due process rights?
Did the parents forfeit their right to challenge the omission of the 12-month hearing by failing to object in the trial court?
Are the parents barred from raising the issue on appeal due to their failure to seek writ relief from the 18-month hearing orders?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We agree parents forfeited their objections and are barred from raising them on appeal.”
“Furthermore, any error in not holding a 12-month hearing was harmless error.”
“At no time did parents object to the court skipping the 12-month review hearing, including at the June hearing or at the July 2012 contested 18-month hearing.”