In Re Arturo A.
FROEHLICH, J.
In In re Amanda B. (1992) 3 Cal. App.4th 935 [4 Cal. Rptr.2d 922], we ruled that review of an order terminating reunification services and referring the case to a
PROCEDURAL BACKGROUND
Arturo, the minor child the subject of this action, was first removed from parental care in November 1988. The principal parental care problem derived from the mother‘s drug addiction. Following an extended period of treatment in accordance with the court-ordered reunification plan, a definitive
Selection and implementation hearings were held on February 20, 1991, and April 22, 1991. The original hearing was continued until the later date to permit further investigation of the possibility of locating adoptive parents for the child, the court initially finding that adoption might be difficult because of Arturo‘s developmental handicaps. A suitable family for adoption was thereafter located, however, and accordingly at the April 22 hearing the court found Arturo to be adoptable and terminated parental rights. The appeal is taken from the judgment of April 22, 1991, which resulted from the selection and implementation hearing.
ISSUES RAISED BY MOTION TO DISMISS
We view the several contentions framed by the appeal as falling into three categories. The first contention is that the procedure utilized to sever parental rights was violative of due process because it permitted severance based upon proof by a preponderance of the evidence rather than by a standard of clear and convincing evidence. The second category of contentions pertains to alleged errors committed at the 366.22 hearing which resulted in the order referring the case for the selection and implementation hearing. The third contention is that if either of the first two grounds for appeal be deemed nonappealable, appellant should be granted relief on the ground of ineffective assistance of counsel in terms of counsel‘s failing to file a timely writ petition. (Appellant was represented by appointed counsel at all hearings.)
After lodging of appellant‘s opening brief, respondent filed a motion for dismissal or limitation of the scope of appeal. By written order dated April 8, 1992, this court advised that it was giving serious consideration to the motion to dismiss and requested further briefing by counsel, directing counsel‘s attention to specific areas of inquiry, including most particularly the question of the effect of ineffective assistance of counsel in juvenile dependency proceedings. After receiving additional briefing from both counsel, oral argument was entertained.
(1) The contentions raised by the appeal either pertain to questions of law or can be resolved by an inspection of the record. Accordingly, we conclude it is appropriate and in the interests of judicial efficiency to resolve this appeal by ruling on the motion to dismiss. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 512, 513, pp. 495-497.) This is particularly true in
DISCUSSION
I. Constitutionality of Procedure
Appellant correctly states that the crucial decisions made at the 366.22 hearing were reached upon a finding based on a preponderance of the evidence. This finding, which resulted in a reference to a selection and implementation hearing, was that the return of Arturo to his mother would create a substantial risk of detriment to his well-being. Appellant contends the use of this standard of proof to resolve the fundamental right of parenting violates due process. Citing Santosky v. Kramer (1982) 455 U.S. 745, 748 [71 L.Ed.2d 599, 603, 102 S.Ct. 1388] and In re Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal. Rptr. 637, 623 P.2d 198], appellant contends that this finding should have required proof by clear and convincing evidence.
This precise issue has been discussed in two cases from different districts of the Court of Appeal, both of which have been accepted for review by the Supreme Court.3 It was also recently visited in In re Cristella C. (1992) 6 Cal. App.4th 1363 [8 Cal. Rptr.2d 342] and In re Reylene A. (Cal. App.).* No purpose would be served by an in-depth review of the subject at this time. Accordingly, for the purpose of this opinion we shall assume, without deciding, that the statute is constitutional (see 13 Cal.Jur.3d, Constitutional Law, § 63, pp. 137-141).
II. Appealability of Errors Committed at the Review Hearing
(2) Appellant seeks to challenge several rulings made at the 366.22 hearing. It is contended that there was insufficient evidence to support both the finding that reasonable reunification services were provided mother and the finding that mother was not in compliance with the reunification plan.
These alleged errors all were subject to review by writ petition or appeal timely filed following the
III. Ineffective Assistance of Counsel
(3a) Appellant anticipates the dismissal of her appeal upon the ground of nonappealability of the issues raised, based upon the rule of
(4) Appellant relies on Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052] and Adoption of Michael D. (1989) 209 Cal. App.3d 122, 136 [256 Cal. Rptr. 884], which define the two-part test for determining ineffective assistance of counsel. It must be shown that (1) trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates, and (2) had counsel rendered competent service the outcome of the hearing would have been more favorable to the client. (Adoption of Michael D., supra, at p. 136.) (3b) As to the first prong of the test, which we may call attorney negligence, appellant notes that
That a parent may always be entitled to representation does not, however, answer the question as to the reversability of an order which was obtained as a result of ineffective assistance of counsel. (6) While some doubt remains, we believe it is reasonably well established that reversal based on ineffective assistance of counsel is not available when the right to counsel was only statutory. (In re Malinda S. (1990) 51 Cal.3d 368, 384-385 [272 Cal. Rptr. 787, 795 P.2d 1244]; In re Mary S. (1986) 186 Cal. App.3d 414, 418-419 [230 Cal. Rptr. 726].) Where, however, the right is of constitutional dimension, the client is entitled not only to counsel but to competent assistance of counsel. “When an indigent is entitled to counsel on due process grounds the entitlement must extend to effective assistance of counsel or it will be a hollow right.” (In re Christina P., supra, 175 Cal. App.3d 115, 129 [220 Cal. Rptr. 525], italics omitted; see also In re James S. (1991) 227 Cal. App.3d 930, 936 [278 Cal. Rptr. 295]; In re Christina H. (1986) 182 Cal. App.3d 47, 50 [227 Cal. Rptr. 41]; In re Ammanda G. (1986) 186 Cal. App.3d 1075, 1080 [231 Cal. Rptr. 372].)
As a general rule, therefore, to determine whether a claim for reversal may be based upon ineffective assistance of counsel, one must review the issue in litigation to determine whether the right threatened is fundamental. (In re Justin L. (1987) 188 Cal. App.3d 1068 [233 Cal. Rptr. 632].) In dependency hearings based upon the section 300 series as it existed before 1989, termination of parental status was not in issue. In order to achieve final termination of status it was necessary to file a new and separate proceeding under Civil Code section 232. The right to counsel in the section 300 proceedings was thus only statutory, not constitutional, and hence failure of appointed counsel to act with competence created no appealable error. (In re Ammanda G., supra, 186 Cal. App.3d 1075, 1080; In re James S., supra, 227 Cal. App.3d 930, 936.)
With respect to those hearings which have the potential of termination of parental rights, however, due process entitlement to competent counsel (under the circumstances described in In re Christina P., supra, 175 Cal. App.3d at p. 129) is apparent. That would certainly be the case in terms of the
Accordingly, of all the decisions made during the course of these hearings, perhaps the one most potentially detrimental to the parent is made at the referral hearing rather than the selection and implementation hearing. As stated in the comment on page 11 of the Senate Select Committee Report on Children and Youth, Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (1988): “In essence, the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.”
We conclude, therefore, that a parent is entitled to due process representation by counsel at any hearing which results in a referral to a
At this point we are moved to review and reflect upon the objectives sought to be achieved by the new law and its very new judicial gloss. (7) As we stated in In re Sean E. (1992) 3 Cal. App.4th 1594 [5 Cal. Rptr.2d 193], a juvenile dependency case “proceeds along a legislatively mandated time grid.” Review hearings are mandated at specific time intervals, finality in child placement being required within 18 months after initial jurisdiction is assumed. “[T]he Legislature intended to eliminate any dilly-dallying in permanently placing a dependent minor and to avoid `losing’ a child in the bureaucratic maze ... and to remove, or at least substantially reduce, any potential detriment to the child that could be caused by court delay.” (Id. at p. 1597.) As we stated in In re Taya C., supra, 2 Cal. App.4th at page 8, “... delay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.”
Accordingly, we have been engaged in a serious campaign to tighten the controls on dependency litigation and straighten and shorten the paths of appellate review. In this appellate district we have adopted experimental rules of court creating a “fast-track” system for appellate review of dependency cases. (Rules 39.2, 39.2A.) We have both formally, through these rules, and informally by educational sessions with counsel, urged the use of writs for review of dependency orders rather than the more time-consuming formal appeals. We have avowed that this court will be “writ friendly” and that we will not only give full attention to all writs but will not deny them on procedural or technical grounds. While these steps have as yet been taken only in the Fourth District, we suspect they will in the future be expanded to other districts.
We, the Courts of Appeal, have also been enforcing the requirement of
(3d) We believe that our “closed door” approach is essential to protect the rights of all interested parties. To do otherwise and routinely examine trial counsel‘s allegedly sub-par efforts in earlier proceedings in an appeal from the
(8) In attempting to preserve the constitutional rights of a parent we cannot ignore the rights of the minor for whose benefit the statutory scheme has been enacted. We must undertake a balanced analysis of the parent‘s rights, recognizing that the interest sought to be protected by the dependency law is the welfare of the child. (In re Sherman M. (1974) 39 Cal. App.3d 40, 44 [113 Cal. Rptr. 847].) There can be no question that at some point the minor acquires a fundamental right which precludes further governmental involvement in the administration of the minor‘s dependency. Exactly when and in what circumstances the minor acquires a constitutional right to a settled life is an issue which we need not decide in this case.6 Nonetheless in
(3e) At the outset we must reaffirm the black letter law established by
(9) Appellant asks that in the event we rely on the rule of
In appellant‘s paperwork we are favored by no such evidence. The alleged error of counsel, it will be remembered, was the failure to initiate a timely writ petition to challenge errors made at the 366.22 hearing. We are all aware, however, of the various reasons why appellate review is not sought as to specific orders. Many grounds might exist in this case, theoretically, for electing not to file a writ petition. The most common of these would be the lack of authority from the client to do so. The burden is on the writ petitioner to demonstrate conduct falling below the standard of care of the legal practitioner. This burden is not met because we have no evidence in the record suggesting the reason for counsel‘s failure to file a review petition. We cannot assume that the decision was the result of negligence, when it could well have been based upon some practical or tactical decision governed by client guidance.
Our deep-seated concern about the procedural problems associated with the late filing of writ petitions alleging ineffective assistance of counsel in dependency cases motivates us to identify another, and seemingly a fundamental, defect in appellant‘s review effort. To make her case, appellant would be required not only to show negligence on the part of her attorney but also that the negligence resulted in prejudice. In order to show prejudice it would be necessary to show that a different result would obtain were the
The problem here is that we are not dealing with static conditions. In a criminal case the factual scenario is established; it will not change; a retrial
Any reversal of an order freeing a child for adoption, however, cannot possibly return the selection and implementation hearing to the same arena in which it was first held.8 This is because the focus of the hearing always must be upon the best interests of the child. The new hearing would entail not only the facts and evidence brought forth at the original hearing, but of necessity would require evidence as to the current status of the child. This enlargement of issues to be considered becomes even more obvious when we contemplate the possibility, as is requested in this case, of overturning not only the selection and implementation judgment, but returning for a rehearing of the old 366.22 hearing. At that hearing the principal issue is whether “return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor.” (
It may be possible in a hypothetical case, or indeed in this case, to conclude that the error made by counsel at a 366.22 hearing two years ago prejudiced a parent‘s then potential for maintaining parental rights. That conclusion assuredly does not lead to the assumption that those potential parental rights yet remain. Before an appellate court can conclude that prejudice has occurred it must, we believe, determine on the basis of current facts that it is likely that a different
How can an appellate court do this? Our brethren in Division Two of this appellate district recently faced the same perplexity. The majority in In re
Therefore, in order to determine prejudice (i.e., that the case would now yield a different result from that of the first hearing) the Court of Appeal must have evidence of the child‘s current status. It must know what has happened to the child since the hearing that is being reversed. Has the child been placed with its adopting parents? Is the child doing well? Has the child bonded to new foster-adoptive parents? If the child two years ago knew his parent, does he still remember her?9 Reflecting upon this situation generally, we must conclude that it will be the rare case in which a child found adoptable will not, pending the appeal, have changed his circumstances very much to the detriment of any possible reunification with the parent.
What we are discussing is, in reality, the appellate court‘s holding an updated review hearing in the guise of determination of prejudice. Should appellate courts do this? Probably not. If and when a proper case arises, and a prima facie showing of probable prejudice is made before the appellate court, we will probably remand the case to the trial court for the evidentiary hearing as to prejudice. We do not remand in this case. There is no showing, one way or the other, as to the present status of the child. We are completely
DISPOSITION
The motion to dismiss the appeal is granted.
Wiener, Acting P.J., and Todd, J., concurred.