In re CODY R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY v. SHAUNA R. In re SHAUNA R. on Habeas Corpus.
D073527 (Super. Ct. No. J512459F), D074328 (Super. Ct. No. J512459F)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 17, 2018
CERTIFIED FOR PUBLICATION
CONSOLIDATED appeal from an order of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge, and petition for writ of habeas corpus. Appeal dismissed; Petition denied.
Services Agency (Agency) did not give preferential consideration to relatives when determining Cody‘s placement. After considering the parties’ supplemental briefing on the issue of standing, we conclude that Shauna does not have standing to appeal the order
Shauna has also filed a petition for writ of habeas corpus asking this court to vacate the dispositional findings and orders and the order terminating parental rights. In an affidavit, Shauna asserts that prior to the June 2017 dispositional hearing she identified several family members who wanted Cody to live with them but the social worker told her that Cody would not, and could not, be moved from his foster home. Shauna аrgues that in placing Cody in a concurrent planning home instead of with a relative, the social worker misstated and misapplied the law governing the relative placement preference.
After receiving an informal response from the Agency, we issued an order to show cause. The parties have filed a return and a traverse, which we have now considered along with briefing and a review of the exhibits. We conclude that a petition for writ of habeas corpus may be filed in dependency cases only in limited circumstances not present here. We therefore deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Cody R., who is now five years old, is a son of Shauna R. and C.R. (together, parents). In August 2013, the Agency detained six-week-old Cody and four of his older siblings in protective custody due to severe neglect. The parents were convicted on related criminal charges of willful cruelty to a child. Shauna and C.R. regained custody
of the children in January and February 2015. The juvenile court terminated jurisdiction in September 2015.
Shortly before Christmas 2016, the children‘s former court-appointed special advocate (CASA) visited the family, which by then included another son and an infant daughter. The CASA observed that three-year-old Cody, who had been a “chunky” baby, was severely underweight, weak and lethargic. His extremities were purрle. The CASA, a former paramedic, said Cody appeared to be near death and advised the parents to take him to the emergency room.
Cody was barely responsive when he arrived at the hospital several hours later. He was significantly malnourished. At three-and-a-half, Cody weighed 21.6 pounds, which was less than he had weighed at his last doctor appointment shortly after his second birthday. Bruises and abrasions on Cody‘s face, back, and legs were concerning for nonaccidental trauma.
In foster care, Cody displayed extreme food seeking behaviors, which was “textbook behavior” for children who had been food deprived. Cody was provided services including Failure to Thrive Clinic, Speech Therapy, Physical Therapy, Trauma Therapy, and developmental support services.
The Agency detained Cody‘s siblings in protective custody in March 2017, when Shauna and C.R. were arrested on charges of felony child cruelty and held without bail.2 Cody‘s baby sister was placed with him in foster care. The older siblings were very guarded when first removed from their parents. They later disclosed the parents said the entire family would go to jail if they talked about what had happened in the home.
The eldest sibling, C.R., Jr., said the parents did not feed Cody and would make him watch while the others ate. The parents locked the kitchen cabinets to prevent Cody from eating at night. C.R., Jr. explained that he and his siblings left food on the ground for Cody but the mice would eat it. Cody was so hungry he ate his feces from his diaper. He was not allowed to play with toys. He was not allowed out of the bedroom and had to stay in bed all day. C.R., Jr. said the parents made him stay home with Cody to avoid having Cody be seen in public. The three oldest children reported that the parents hit all the children, leaving marks and bruises, and encouraged them to hit each other and Cody.
On June 2, 2017, at the contested jurisdictional and disposition hearing, the juvenile court found that Cody was a child described by
inform them that proper review of an order setting a
Cody‘s Placement History and Search for Relatives Interested in Placement
Cody was hospitalized from December 24 to 29, 2016. At a team decision meeting in January 2017, Shauna and C.R. said there were no relatives available tо care for Cody. The parents agreed to place him with a nonrelative extended family member (NREFM) under a voluntary safety plan and asked the Agency to consider placing Cody with their employers and friends, the B.‘s. The Agency began an evaluation of the B.‘s home, but the B.‘s withdrew their names from consideration for placement prior to the dispositional hearing.
The Agency filed a
During Cody‘s hospitalization, Aunt B., who was married to Shauna‘s brother (Uncle N.), visited Cody while a soсial worker was present. Aunt B. was reluctant to get involved in Cody‘s case. She told the social worker she did not understand how the parents could have ignored Cody‘s condition. At a court hearing, Shauna confronted
Aunt B. and demanded she retract her statement. When Aunt B. refused, Shauna said, “[Aunt B. is] never to see Cody again.”
On February 2, the social worker sent letters to nine relatives, including Uncle D. and Uncle N., asking if they were interested in caring for Cody. The letter advised the relatives that if they did not come forward prior to the dispositional hearing, “the opportunities for placement in relative care may diminish as the child‘s case progresses.”
In March, the social worker contacted Shauna to review the Agency‘s dispositional recommendations to bypass services and set a
On May 5, the social worker met with Cody‘s maternal grandmother and grandfather, Aunt B., and Aunt V., who were concerned about the children‘s welfare. The family advised against ever returning the children to Shauna‘s
After the case was referred to a
writ petition had been dismissed on July 10 and advised her to contact her attorney. The social worker explained that the Agency had the authority to make placement decisions on Cody‘s behalf. They had tried to identify relatives and NREFMs for placement but did not find anyone willing to provide long-term care for Cody.
In response to Shauna‘s further telephone calls and letters, the social worker sent another email, stating in relevant part: “Cody is a dependent of the Court and because of that you no longer have a say in where your son is placed. The Agency many times asks parents for ideas of family members or family friends . . . . This does not mean the parents are making the decision of where your [sic] child is placed but rather giving ideas of individuals that can be assessed if they are able to provide a safe home and protect the children from further abuse or neglect. . . . The decision for placement is always with the Agency and/or the Courts. Cody is in a home where he is thriving. . . . We have no intention of moving Cody from this home.”
Section 366.26 Hearing
The
Shauna testified that she and Cody had a strong bond. Before she was arrested, Cody enjoyed his visits with the family. During visits, they played, blew bubbles, and played ball. When Cody left, he would hug them and say, “I love you.”
The juvenile court observed that Cody, who was then four years old, had spent only one year in the care of his parents. During that year, the evidеnce showed that his parents tortured and nearly starved him to death. The court characterized Cody‘s relationship with his parents as a relationship of “terror, trauma, and fear” and found there were no exceptions to termination of parental rights. The court terminated parental rights and designated Cody‘s caregivers as his prospective adoptive parents.
DISCUSSION
I. The Appeal
A. Overview
Shauna argues the order terminating parental rights to Cody must be reversed because the Agency did not favorably consider any of Cody‘s relatives for placement throughout the proceedings, culminating with the
or that the outcome of the
We directed the parties to file letter briefs addressing the issue of whether Shauna has standing to appeal the order terminating parental rights in view of In re K.C. (2011) 52 Cal.4th 231 (K.C.) and In re A.K. (2017) 12 Cal.App.5th 492 (A.K.).
Shauna contends she has standing because at trial she sought to preserve her parental rights and timely appealed from the adverse judgment. She contends the challenge to the placement orders advances her argument against terminating parental rights. Shauna posits that reunification with Cody remains a possibility because she did not receive an advisement of her right to file a writ petition challenging the dispositional orders and findings, including placement, and her challenges to Cody‘s placement predate the dispositional hearing at which the court bypassed reunification services. She asserts that her inability to challenge the dispositional findings and orders preserves her standing to challenge her son‘s placement at the
B. Shauna Does Not Have Standing to Appeal
We reject Shauna‘s argument she has standing to appeal because the juvenile court did not advise her of the right to challenge the jurisdictional and dispositional findings and orders by writ. (See generally In re Cathina W. (1998) 68 Cal.App.4th 716, 722 [failure to advise of right to file a writ constituted good cause to allow parent to raise issues from the referral hearing on appeal from termination of parental rights].) Although the required writ advisement does not appear in the minute order,4 Shauna signed a notice of intent to file a writ petition the day of the jurisdictional and dispositional hearing. The record shows she had actual notice of her right to file a writ and did in fact timely file the notice of intent to challenge the dispositional findings and orders. Any error by the court was therefore harmless.
In addition, Shauna‘s argument that reunification with Cody rеmains a possibility is frivolous. Any placement error at the dispositional hearing would not have affected the order bypassing reunification services and setting a
the court would have bypassed services and set a
“Whether a person has standing to raise a particular issue on appeal depends upon whether the person‘s rights were injuriously affected by the
Shauna contends her argument concerning Cody‘s placement are challenges that advance her argument against terminating parental rights. She contends that, unlike the
parent in K.C., she argued at the
Even if Shauna had standing to appeal the order terminating parental rights on the ground the Agency did not meet its statutory obligation to give preferential treatment to relatives, we would reject her claim. The record shows that in January 2017, Shauna and C.R. told the social worker there were no relatives availаble to care for Cody. They agreed to place him with a nonrelative extended family member (NREFM) and asked the Agency to evaluate their friends, the B.‘s, for placement. The Agency agreed, but the B.‘s withdrew their names from consideration for placement prior to the dispositional hearing. The Agency cannot be faulted for the B.‘s decision.
On January 27, 2017, the social worker removed Cody from the NREFM and placed him in a concurrent family home with his current caregivers. The record permits the reasonable inference the Agency did so because the NREFM was not able to offer Cody a permanent placement.
In February, the social worker sent letters to nine relatives, including Uncle D. and Uncle N., asking if they were interested in caring for Cody. The record supports the reasonable inference that Uncle D. expressed an interest in Cody‘s placement because the social worker met with him and his girlfriend. However, the day after the meeting child welfare services received a report alleging Uncle D. did not have electricity in his home, which was not true. According to Shauna‘s family, she had a history of making false claims of abuse against her siblings and their spouses. The family met with the social worker, who was continuing to look for relative placement for Cody. Instead of expressing an interest in caring for Cody, family members said they had distanced themselves from Shauna because of her destructive behaviors and warned against returning any of the children to her care. Notably, the relatives did not care for Cody during his prior dependency сase. Cody was in a foster care home from age six weeks to the day before his first birthday. That placement failed because Shauna became very aggressive and threatened to burn down the foster care home.
In March, the social worker contacted Shauna, who refused to meet with her or to provide any recommendations for Cody‘s placement. Shauna did not raise the issue of placing Cody with a relative at any time during Cody‘s dependency proceedings. Thus, the record does not support her claims there were relatives who were willing to provide a
home to Cody and the Agency failed to apply the relative placement preference. In not bringing the placement issue to the juvenile court‘s attention at any time during Cody‘s dependency proceedings, Shauna has forfeited the issue on appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [a party forfeits the right to claim error as grounds for reversal on appeal when she fails to raise the objection in the trial court].)
Shauna‘s appeal is without merit.
A. Overview
Shauna contends a petition for writ of habeas corpus is the proper vehicle to present claims of error supported by evidence not included in the appellate record. She maintains that her petition for writ of habeas corpus (petition) is her first chance to present this claim of error because she was not afforded the opportunity to prepare and file a writ petition after referral to the
Shauna asserts that prior to the June 2017 dispositional hearing, she identified several family members who wanted Cody to live with them, including Cody‘s uncle (Uncle D.), his aunt by marriage (Aunt B.), and his great-grаndmother (Grandma T.).
She asks this court to vacate the pertinent dispositional findings and orders,6 and the order terminating her parental rights.
We issued an order to show cause to address an important and novel issue of law: whether habeas corpus may be utilized to present evidence to an appellate court that was not before the lower court in a dependency proceeding. (See In re Robbins (1998) 18 Cal.4th 770, 779.) We hold that habeas corpus in dependency proceedings is limited to claims of wrongful withholding of custody of the child, including lack of jurisdiction, and claims of ineffective assistance of counsel. We disapprove the use of a petition for writ of habeas corpus in dependency cases to challenge a dependent child‘s placement.
B. Habeas Corpus Is An Extraordinary Remedy of Limited Scope
In dependency proceedings, habeas corpus has long been limited to claims of (1) entitlement to physical custody of a child where custody has been wrongfully withheld, or (2) ineffective assistance of counsel. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 866 (Alexander S.); In re Richard M. (1975) 14 Cal.3d 783, 789; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1659, 1667.) Shauna contends habeas corpus should also be an appropriate vehicle to bring to the aрpellate court‘s attention
evidence that was not before the trial court. We address each of these three potential bases for habeas relief.
1. Right to Physical Custody
There are various subcategories of entitlement to physical custody of a child. (Alexander S., supra, 44 Cal.3d at p. 866.) A writ of habeas corpus may be used to enforce an existing right to physical custody established by prior order or to determine physical custody in the absence of any previous custody order. A parent may bring a habeas corpus action to protect a child from imminent danger. A natural parent lacking physical custody may bring an original action in habeas corpus where the parent‘s consent to an adoption was required but not obtained. Finally, habeas corpus may be brought to collaterally attack a prior child custody order where the court issuing the prior order lacked jurisdiction. (Alexander S., at pp. 866-867, citing In re Richard M., supra, 14 Cal.3d 783; In re Croze (1956) 145 Cal.App.2d 492, 495; In re Wren (1957) 48 Cal.2d 159, 163; In re Dowell (1935) 4 Cal.App.2d 688, 689; In re Reyna (1976) 55 Cal.App.3d 288, 294; Ex Parte Barr (1952) 39 Cal.2d 25, 27-28.)
Shauna claims a petition for writ of habeas corpus is appropriate because the state placed Cody with foster parents who wish to adopt him and in doing so, violated the statutory preference for relative placement. She does not assert under any theory that she is being wrongfully denied her right to physical custody of Cody, who was removed from her care on an unchallenged finding оf substantial detriment. Thus, this case does not fall within any of the subcategories listed in Alexander S. and Shauna is not entitled to assert a claim of habeas corpus on this ground. We decline to create a new subcategory to
allow a parent to assert that custody was wrongfully withheld from the child‘s relative.7 As Shauna acknowledges, her claim concerns the application of
2. Ineffective Assistance of Counsel
Nor do we believe Shauna has stated a claim to relief based on ineffective assistance of counsel, the other accepted use of habeas corpus in a dependency proceeding. It is well settled that a litigant seeking habeas relief must ” ‘state fully and with particularity the facts on which relief is sought.’ ” (In re Reno (2012) 55 Cal.4th 428, 482 (Reno), quoting People v. Duvall, supra, 9 Cal.4th at p. 474.) The petitioner bears a heavy burden initially to plead sufficient grounds for relief. (In re Martinez (2009) 46 Cal.4th 945, 955.) “[T]his pleading requirement logically applies to explaining why a specific claim is cognizable in the first place.” (Reno, at p. 482.) To assert a claim of ineffective assistance, a petitioner must allege that the performance of trial or appellate counsel fell below an objective standard of reasonableness under prevailing professional norms and was therefore deficient. He or she must also claim there is a reasonable
probability that, but for counsel‘s errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1407-1408.)
Shauna makes no explicit assertion that she was denied effective assistance of counsel, and we do not think her petition can be fairly read as offering any cognizable habeas claim on that ground. Although the Agency purports to respond to what it characterizes as Shauna‘s “vague assertions of ineffective assistance of counsel,” it refers to a single citation in her petition: ”In re Arturo A. (1992) 8 Cal.App.4th 229, 243 [proof of ineffective assistance of counsel commonly goes beyond the existing record].” Moreover, when the Agency‘s response sought to offer affidavits from Shauna‘s trial counsel and trial counsel‘s supervising attorney disclosing confidential communications from Shauna, allegedly in response to her claims of ineffective assistance, Shauna objected, moved to strike the affidavits, and denied making an ineffective assistance claim. We take her at her word.8
3. Evidence Outside the Appellate Record
Finally, we examine Shauna‘s argument that а petition for habeas corpus may be used to present a claim of error that is supported, in pertinent part, by
concern claims of ineffective assistance of counsel, which as we havе indicated is not presented here. (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 126, superseded by statute on another point, as noted in In re Mario C. (1990) 226 Cal.App.3d 122, 134; In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1101; cf. In re Arturo A., supra, 8 Cal.App.4th, at p. 243.) Shauna has not cited, and we have not independently located, any authority permitting habeas in an adoption-related action that does not involve a claim of wrongfully withheld custody or ineffective assistance of counsel.
” ‘[H]abeas corpus is an extraordinary, limited remedy against a presumptively fair and valid final judgment.’ ” (Reno, supra, 55 Cal.4th at p. 450.) “This limited nature of the writ of habeas corpus is appropriate because use of the writ tends to undermine society‘s legitimate interest in the finality of its criminal judgments, a point this court has emphasized many times.” (Id. at p. 451.) The California Supreme Court has applied this principle to adoption-related cаses. (Alexander S., supra, 44 Cal.3d at pp. 867-868 [“Out of concern for the welfare of children in adoption actions, we hold that habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment“]; accord, Lehman v. Lycoming County Children‘s Services Agency (1982) 458 U.S. 502, 513-514 [federal habeas in child custody disputes prolongs uncertainty for children and is disallowed].)
More importantly in this context, a writ of habeas corpus is not available where there is an alternative remedy. (Villery v. Department of Corrections & Rehabilitation (2016) 246 Cal.App.4th 407, 415-416.) Generally, because of the ongoing nature of
dependency cases, there is an alternative means to bring new evidence to the timely attention of the juvenile court.
Shauna claims that if she had the prior opportunity to file a writ petition under
may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment].)
DISPOSITION
The appeal is dismissed. The petition for writ of habeas corpus is denied.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
GUERRERO, J.
Notes
In holding that a parent lacks standing to appeal an order terminating parental rights where his rights and interest in reunification were not injuriously affected by the failure to consider relative placement, A.K. arguably disregards the California Supreme Court‘s holding that a parent has standing to appeal where he can show that the reversal of the placеment order advances the parent‘s argument against terminating parental rights. (K.C., supra, 52 Cal.4th at p. 238, italics added.) A parent‘s interest in reunification is distinct from her interest in avoiding termination of parental rights. We are thus disinclined to read A.K. as stating a broad rule that a parent whose reunification services have been terminated has no standing to appeal placement orders.