In re S. D. CA2/6

Filed 5/15/14 In re S. D. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re S.D. and P.D., Persons Coming Under 2d Juv. No. B245220 the Juvenile Court Law. (Super. Ct. No. J1395920) (Super. Ct. No. J1395921) (Santa Barbara County)

SANTA BARBARA COUNTY CHILD WELFARE SERVICES,

Petitioner and Respondent,

v.

MARGARITA H.

Appellant.

Margarita H. (mother) appeals a November 15, 2012 order terminating parental rights to her daughters, S.D. (age 14) and P.D. (age 7). (Welf. & Inst. Code, § 366.26.)1 Mother has also filed a petition for writ of habeas corpus alleging that she was denied effective assistance of counsel. (B246555.) On June 10, 2013, we issued an order to show cause on the habeas petition, directing the trial court to conduct an evidentiary hearing, make findings, and grant or deny appropriate relief. Following an evidentiary hearing, the trial court concluded that mother did not receive effective assistance of counsel at the jurisdictional/disposition hearing wherein services were

1 All statutory references are to the Welfare & Institutions Code. 1

bypassed. (§ 361.5, subd. (e)(1).) The record further reflects that mother was not advised, either in court or by mail, of the requirement to file a petition for extraordinary writ review of the order bypassing services (Cal. Rules of Court, rule 5.590(b); § 366.26, subd. (l)(3)A)). Based on the notice, due process, and effective assistance of counsel errors, mother collaterally attacks the order terminating parental rights. (See In re Athena P. (2002) 103 Cal.App.4th 617, 624-625; In re Rashad B. (1999) 76 Cal.App.4th 442, 449-450; In re Darlice C. (2003) 105 Cal.App.4th 459, 465; In re Cathina W. (1998) 68 Cal.App.4th 716, 722.) We reverse the order terminating parental rights and direct the trial court to conduct a new jurisdictional/disposition hearing. Procedural History On April 26, 2012, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition for failure to protect or provide for S.D. and P.D. (§ 300, subds. (b) & (g).) Mother was in federal prison in Northern California (Dublin Federal Correction Institution) for illegally reentering the United States. CWS reported that the alleged father had an extensive criminal history that included arrests for carrying a concealed weapon in a vehicle, carrying a loaded firearm, possession of a controlled substance for sale, transporting controlled substances, four arrests for possession of narcotic controlled substances, damage to a prison/jail, assault with a deadly weapon, and murder. Mother received telephonic notice of the detention hearing but was in prison and could not appear. The trial court appointed Attorney Richard Martinez to represent mother and ordered that mother be produced at the May 21, 2012 jurisdictional/disposition hearing. Before the hearing, CWS recommended that the trial court bypass reunification services because mother was in federal prison (§ 361.5, subd. (e)(1)) and the whereabouts of the alleged father was unknown (§ 361.5, subd. (b)(1)). When federal prison authorities declined to produce mother on May 21, 2012, the trial court continued the jurisdictional/disposition hearing so that Attorney Martinez could review the reports and discuss the case with mother. At the June 18,