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In re Jackson W.

April 29, 2010

IN RE JACKSON W. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
D.W., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed. (Super. Ct. No. SJ12022A-|B).

The opinion of the court was delivered by: McCONNELL, P. J.

CERTIFIED FOR PUBLICATION

D.W., mother of dependent children Jackson W. and Trenton W. (together, the minors), appeals a juvenile court order summarily denying her Welfare and Institutions Code*fn1 section 388 petition for modification by which she sought a hearing on whether she received the effective assistance of counsel at an earlier stage of the proceedings. This appeal raises several issues of first impression: (1) whether a parent who waives the right to have the juvenile court appoint counsel trained in juvenile dependency law in order to retain counsel who does not meet those qualifications can claim privately retained counsel provided ineffective representation; and (2) whether a section 388 petition is the proper mechanism by which to raise a claim of ineffective assistance of counsel. We hold a parent, after proper advisement, may knowingly, intelligently and voluntarily waive the statutory right to be represented by appointed counsel meeting the definition of "competent counsel" under California Rules of Court*fn2 , rule 5.660(d). Once that right is waived, the parent is precluded from complaining about counsel's lack of juvenile dependency qualifications. We further hold that a parent who has a due process right to competent counsel can seek to change a prior court order on the ground of ineffective assistance of counsel by filing a section 388 petition, although the customary and better practice is to file a petition for writ of habeas corpus in the juvenile court.

Even assuming D.W. did not waive her right to raise the issue of her retained counsel's incompetence, and even assuming she properly alleged ineffective assistance of counsel in a section 388 petition, we conclude she has not met her burden of showing she was entitled to an evidentiary hearing on the petition or that she was prejudiced by counsel's claimed deficiencies. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2008 the minors were removed from the custody of their parents, D.W. and Matthew W. (together, the parents), when two-month-old Trenton was discovered to have multiple injuries, including a fractured femur and several fractured ribs in various stages of healing. Trenton also had an injury to his mouth and a bruise under his eye which the parents could not explain. When D.W. discovered Trenton had a swollen leg, she took him to the emergency room, but then left because it was too crowded, and waited until the next day to call the doctor. The parents' explanation that the femur fracture resulted from a fall from their bed several days earlier was inconsistent with medical findings. When Jackson was a newborn, he was taken to the hospital with bruises on the sides of his face. Matthew claimed this occurred when Jackson's head got stuck between the crib railings.

The attending physician noted Trenton would have been in tremendous pain at the time of the femur fracture, and he would have cried every time he had his diaper changed or was bathed. Matthew said he could have caused the rib fractures by holding Trenton too tight, and he could have caused the femur fracture by twisting Trenton's leg to turn him face up. The parents did not understand the severity of Trenton's injuries, and D.W. insisted Matthew had not caused the injuries.

The San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court alleging Trenton had suffered severe physical abuse inflicted nonaccidentally (§ 300, subd. (e)), and one-year-old Jackson was at substantial risk of harm as a result of the abuse inflicted on Trenton. (§ 300, subd. (j).) The court made prima facie findings on the petitions and detained the minors in out-of-home care.

In a report prepared for the jurisdiction and disposition hearings, Agency recommended the court deny the parents reunification services under section 361.5, subdivision (b)(5). Even after Trenton's injuries were called to D.W.'s attention and Matthew admitted causing them, D.W. claimed Trenton had a "bone condition" or the babysitter was responsible for the injuries. However, the medical reports ruled out a bone condition and concluded the injuries were caused by nonaccidental trauma. Based on Trenton's visible injuries, the inconsistent story D.W. gave for them and her delay in obtaining treatment, the social worker believed D.W. was fully aware of the abuse that was occurring, allowed it to happen and chose to protect Matthew rather than her children.

The social worker believed reunification services for D.W. would not be in the minors' best interests because services would not likely prevent reabuse. D.W. had not protected the minors, and she lacked protective skills despite completing a parenting class and actively engaging in therapy. She refused to admit Matthew abused the minors.

In July 2008 the parents appeared in court with their appointed counsel and the matter was set for trial. A month later, D.W. informed the court she wanted to hire her own attorney. The court advised D.W. of the importance of hiring an attorney because of the possibility she would not receive reunification services. County counsel commented that D.W. should be aware that her counsel of choice needed to be specialized or approved in child dependency law, and "she would have to waive that specialty if she's going to retain anybody that does not regularly practice in this field."

D.W. was enrolled in therapy and making some progress. She was now "opening her eyes" to the possibility Matthew had caused Trenton's injuries, but was still "really torn." D.W. acknowledged something had happened to Trenton, but she was not sure how he was injured.

On September 2, 2008, D.W. appeared in court with her retained counsel, Randall Dierlam. The following exchange occurred: "The Court: All right. Thank you. Is that correct, ma'am, that is as to the mother, you wish Mr. Dierlam to be your attorney?

"The Mother: Yes, sir.

"The Court: Mr. Dierlam, are you a certified specialist in juvenile dependency law?

"Mr. Dierlam: No, I'm not.

"The Court: All right. And your attorney, Mr. Dierlam, has indicated, or the attorney you would like to have represent you has indicated that he is not such a specialist. Do you understand that?

"The Mother: Yes.

"The Court: Is it still your desire to have Mr. Dierlam represent you ...


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