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In Re A. B., A Person Coming Under the Juvenile Court Law. v. Christina C

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


May 13, 2011

IN RE A. B., A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
CHRISTINA C., DEFENDANT AND APPELLANT.

(Super. Ct. No. 53002939)

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

In re A.B. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Christina C., mother of minor A. B., appeals from the orders of the juvenile court terminating dependency jurisdiction over the minor and entering an "exit order" (Welf. & Inst. Code, § 362.4; see In re John W. (1996) 41 Cal.App.4th 961, 970, fn. 13) which continued an existing no-contact order between appellant and the minor. (Welf. & Inst. Code, §§ 362.4, 395; further statutory references are to this code.)

Appellant claims the juvenile court denied her due process when it dismissed the dependency and issued the exit order without giving her prior notice. We reject appellant's claim and shall affirm the juvenile court's orders.

FACTUAL AND PROCEDURAL HISTORY

In May 2009, the minor (then 14 years old) was declared a dependent of the Alameda County Juvenile Court as a result of a petition, and later an amended petition, alleging an extensive history of appellant's physical abuse of and failure to protect the minor. The whereabouts of the minor's father, David B. (father), was unknown at that time. The juvenile court denied reunification services to appellant, ordered the minor to be placed with her maternal grandparents, and set the matter for a section 366.26 hearing. The court prohibited contact between appellant and the minor and the minor's half sister by deferring to an existing five-year no-contact order entered in criminal proceedings pending against appellant.

On June 17, 2009, after repeatedly expressing suicidal ideations, the minor was removed from her grandparents due to their inability to manage her emotional, psychiatric, and behavioral needs.

The minor's father was located and, on July 25, 2009, he filed a request pursuant to section 388 for reunification services and either contact with or physical custody of the minor. On August 13, 2009, the court vacated the section 366.26 hearing and set the matter for a hearing on father's section 388 request. On October 22, 2009, the juvenile court granted father's request for services and ordered that the minor was to reside with the father in Placer County.

On October 27, 2009, the juvenile court ordered that the dependency case be transferred to Placer County.

On November 20, 2009, the Placer County Juvenile Court accepted the transfer of the case and ordered that "[a]ll previous orders, . . . remain in full force and effect," including the no-contact order.

The Placer County Juvenile Court held an interim hearing on December 18, 2009. Appellant's counsel attended, but appellant declined to do so. The court continued services to and placement of the minor with the father and set the six-month review hearing for April 23, 2010.

The status review report filed April 6, 2010, summarized the recommendations of the Placer County Department of Health and Human Services (the Department) as follows: "It is respectfully recommended that the father, David [B.], be granted an additional six months of family maintenance services. It is further respectfully requested that a status review hearing take place three months from the date of this hearing to review possible termination of the dependency of [the minor]. Services to the mother, [appellant], were terminated on May 11, 2009, by Alameda County Juvenile Justice court. A criminal no-contact order against [appellant] remains in effect for the protection of [the minor]." The report also noted that while the minor was doing well in her placement with the father, she "does not express the desire to see or speak with [appellant]."

On April 6, 2010, written notice of the six-month review hearing was sent to all parties, including appellant and her counsel.

The six-month review hearing commenced on April 23, 2010. Appellant's counsel attended; appellant did not. The following colloquy took place between the court and several of those in attendance:

"MR. HENDERSON [court liaison officer]: "Everybody is doing well, your Honor. The Department has changed the recommendation in the report. The Department is moving to terminate dependency today because they have been so successful.

"THE COURT: The original recommendation, another six months of FM [family maintenance] services with a review in three months regarding possible termination.

"MR. HENDERSON: Correct, your Honor, but RAFT services have been successful. They have closed their case on it. The counseling has been discontinued because [the minor] has reached the point in counseling where for it to be beneficial before coming back to it [sic]. She is achieving a 3.8 grade point average. She is doing well in school. She has people in place to assist her. If the family needs more services, the Department would be available, your Honor.

"THE COURT: Okay. Mr. Burdick, any comments on behalf of [appellant]?

"MR. BURDICK [appellant's counsel]: No."

Minor's counsel supported the recommendation of the Department. The court terminated the minor's dependency status and issued the following exit order: "sole legal, sole physical custody to father. There will be no visits for [appellant]. [Appellant] will need to go to family law court to modify that." When asked if there was any further comment, appellant's counsel replied, "Nothing further."

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant contends the juvenile court dismissed the dependency and issued exit orders without giving her prior notice, thus denying her right of due process. We disagree.

Section 292 requires that notice of a review hearing "shall be served not earlier than 30 days, nor later than 15 days, before the hearing." (§ 292, subd. (c).) "The notice shall contain a statement regarding the nature of the hearing to be held and any change in the custody or status of the child being recommended by the supervising agency. The notice shall also include a statement that the child and the parent . . . have a right to be present at the hearing, to be represented by counsel at the hearing and the procedure for obtaining appointed counsel, and to present evidence regarding the proper disposition of the case. The notice shall also state that if the parent or parents . . . fail to appear, the court may proceed without them." (§ 292, subd. (d).)

The notice provided to appellant was proper. It provided the date, time, and location of the hearing, and stated that the social worker recommended "a change in orders, services, placement, custody, or status (specify): (See Report)." The social worker's report to which the notice refers recommended that the minor's father be granted six additional months of family maintenance services, and that a status review hearing be scheduled for three months from the date of the hearing "to review possible termination of the dependency of [the minor]." The report also noted that the criminal no-contact order remained in effect, and that the minor did not wish to have any contact with appellant.

The notice also stated that "[t]he court and social worker are not bound by recommendations contained in the social worker['s] report," and advised appellant that she had a right to be present at and present evidence at the hearing, and to be represented by an attorney, and that the court would proceed with the hearing whether or not she was present.

Appellant claims the notice she received was inadequate. However, she failed to raise her claim in the juvenile court, thereby forfeiting her right to raise it on appeal. "An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. [Citation.] Dependency cases are not exempt from this forfeiture doctrine. [Citations.] The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected. [Citation.] Although forfeiture is not automatic, and the appellate court has discretion to excuse a party's failure to properly raise an issue in a timely fashion [citation], in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion 'should be exercised rarely and only in cases presenting an important legal issue.' [Citation.]" (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)

"A defect in notice . . . is a most serious issue, potentially jeopardizing the integrity of the entire judicial process. However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court. [Citation.]" (In re Wilford J., supra, 131 Cal.App.4th at p. 754.)

Appellant claims she had no opportunity to present the issue of lack of notice to the juvenile court. We disagree. She received notice of the hearing. The notice contained a general statement of the social worker's recommendations and refers to the report for further information. The notice also stated that neither the court nor the social worker was bound by the recommendations contained in the social worker's report. Although apparently able, appellant elected not to attend the hearing. She was, nonetheless, represented by counsel who participated in the hearing and had every opportunity to object, seek a continuance, or in some other manner inform the court that appellant objected to the form of the notice or wanted an opportunity to present evidence. He did not. Counsel acquiesced in the dismissal of the dependency and the exit orders issued in conjunction therewith.

Appellant argues her attorney's failure to object denied her "the right and opportunity" to contest the court's orders and thus denied her effective assistance of counsel.

A parent claiming ineffective assistance of counsel has the burden of showing that counsel failed to act in a manner to be expected of reasonably competent counsel, that "counsel's representation fell below an objective standard of reasonableness." (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) The parent must also show prejudice, that is, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

Even assuming counsel's failure to raise the notice issue below was erroneous, appellant cannot demonstrate she was prejudiced. The net effect of the juvenile court's order was to dismiss dependency jurisdiction, but otherwise maintain the status quo with respect to the minor's custody and visitation. Services to appellant had been denied at the inception of the proceedings. The minor had been living with the father since October 2009, with the father receiving family maintenance services. There was no contact between the minor and appellant pursuant to the existing five-year no-contact order, and the minor indicated she had no desire to see or speak with appellant and she intended to enforce the no-contact order.

Appellant claims "it could be the case" that she would present evidence of "her graduation from the residential treatment center, sobriety, completion of parenting classes, medication, employment, relocation from the environment in which she allegedly had affiliation with gang members, caring for her child, and rehabilitation," or that "the criminal protective order previously barring visitation had been modified and vacated as of February 10, 2010 in the criminal action, case no. H56337," in an effort to oppose the prohibition on visitation with the minor. However, the assertion that she might have done so does little to undermine confidence in the actual outcome of the proceeding. (Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at p. 698]; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Even assuming she had presented such evidence, it is not reasonably probable that the result of the hearing would have been different, particularly in light of the minor's desire to keep the no-contact order intact and the juvenile court's willingness to accommodate the minor's wishes unless and until appellant made a request to the family court for an order otherwise, as is her right. Appellant was not prejudiced by her attorney's performance, and her claim of ineffective assistance fails.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: HULL ,J. ROBIE ,J.

20110513

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