Filed 8/4/14 H.C. v. Super. Ct. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


H.C.,                                                                H041016
                                                                    (Monterey County
         Petitioner,                                                 Super. Ct. No. J46808)

         v.

THE SUPERIOR COURT OF
MONTEREY COUNTY,

         Petitioner,

MONTEREY COUNTY DEPARTMENT
OF SOCIAL & EMPLOYMENT
SERVICES,

         Real Party in Interest.




                                           I.        INTRODUCTION
         H.C. is the father of M.B., the child at issue in this juvenile dependency case.
The father has filed a petition for extraordinary writ seeking review of the juvenile
court’s order selecting adoption as the permanent plan at a Welfare and Institutions Code
section 366.261 permanency planning hearing. (See § 366.28, subd. (b)(1).)

         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
       In his writ petition, the father contends this court should vacate the order
terminating his parental rights and designating adoption as the permanent plan. For
reasons that we will explain, we will deny the writ petition.

              II.    FACTUAL AND PROCEDURAL BACKGROUND
       A.     Section 300 Petition
       On October 16, 2012, the Monterey County Department of Social and
Employment Services (the Department) filed a petition under section 300,
subdivisions (b) [failure to protect] and (g) [no provision for support], alleging that the
child came within the jurisdiction of the juvenile court. The child was eight months old
at the time.2 The petition alleged the following facts.
       On August 8, 2012, the Department had received an initial referral based on the
fact that the child was underweight: he weighed only 10 pounds at age six months. The
mother was taking psychotropic medication for posttraumatic stress disorder and anxiety.
The mother reported that the father was hitting her and had been convicted of committing
battery against her three years earlier. The father denied committing domestic violence
and accused the mother of using cocaine.
       On August 29, 2012, the Department received another referral. The mother
admitted methamphetamine use and that she had been under the influence of prescription
drugs while caring for the child. The mother admitted being on parole for transporting
drugs. She reiterated that the father had been violent with her. She accused the father of
using methamphetamine and cocaine. The mother agreed to voluntary family
maintenance services including an alcohol and drug assessment, counseling services for




       2
        The mother had two other children, both of whom had different fathers. Those
children were living with their paternal relatives in Texas.


                                              2
domestic violence, and drug testing. The father was in custody due to a recent arrest for
traffic warrants.
        On October 8, 2012, after the father was released from custody, the parents had an
argument while driving in a car with the child, who was in an unsecured car seat. The
father drove the vehicle erratically, at speeds of up to 85 miles per hour. The father
punched the mother in the face several times. The car was pulled over by the police, and
the father was arrested. At the time the petition was filed, the father remained in county
jail.
        On October 12, 2012, the mother was agitated and incoherent while at a medical
clinic. She had not fed the child and said she needed help caring for him. A social
worker took the child into protective custody.
        B.    Detention Hearing
        At the detention hearing held on October 17, 2012, the juvenile court found that
continuance in the parental home would be contrary to the child’s welfare and that
removal from the parents’ custody was necessary to protect the child’s physical or
emotional health. The court therefore determined that a prima facie showing had been
made that the child came within section 300, and it ordered the child detained.
              C.     Jurisdiction/Disposition Report
        The Department’s jurisdiction/disposition report, filed on November 21, 2012,
recommended reunification services be provided to both parents. However, the father
had charges pending from the October 8, 2012 incident and remained in county jail.
Because of the pending charges and the fact that he had a prior felony conviction, it was
doubtful that the father would be released in time “to participate in reunification
services.”
        The mother had visited with the child, who was in a concurrent home (a home
where the foster parents are the potential adoptive parents). Two visits were terminated
early because the mother was distracted and upset. The mother was delusional during

                                             3
one visit. During three subsequent visits, the mother “began to normalize.” The father
had not visited with the child due to his incarceration.
       The mother had been provided with a psychological evaluation. Both parents had
been referred to alcohol and drug assessments and for a Family Mental Health
Assessment. The mother’s case plan included domestic violence counseling, cooperation
with the Victim Witness program, participation in a second psychological evaluation, if
recommended, and participation in “Parent[]s as Teacher[]s.” The father’s case plan
included demonstrating the ability to maintain non-violent relationships, compliance with
court orders in his criminal case, and completion of alcohol and drug workbooks.
       D.     Jurisdiction/Disposition Hearing: Father
       A jurisdiction/disposition hearing was held on November 28, 2012. The father
submitted on the basis of the Department’s report. The juvenile court adopted the
findings and orders contained in the Department’s jurisdiction/disposition report as to the
father: the court found the allegations of the section 300 petition true, declared the child
a dependent of the court, ordered the child’s out-of-home placement to continue, and
ordered reunification services. The court continued the matter for a contested hearing as
to the mother and ordered another psychological evaluation of the mother.
       E.     Section 388 Petition
       On December 21, 2012, the social worker filed a section 388 petition, requesting
the court suspend the mother’s visitation. The social worker alleged that the mother’s
visits had become detrimental to the child. The mother’s behavior had been “concerning
and erratic.” The mother had subjected the child to “very intrusive body searches” during
the visits and demonstrated “little to no parenting skills.”
       The social worker reported the results of the mother’s two psychological
evaluations. The first evaluator concluded that the mother suffered from a mental
disorder that rendered her incapable of utilizing reunification services. The second
evaluator concluded that the mother’s behavior during visits was detrimental to the child

                                              4
because he was becoming “habituated” to the invasive body searches. The mother
continued to exhibit delusional thoughts about the child’s appearance and safety.
       On January 7, 2013, the juvenile court granted the social worker’s section 388
petition, ordering the mother’s visitation suspended.
       F.     Jurisdiction/Disposition Hearing: Mother
       On January 28, 2013, the mother withdrew her request for a contested
jurisdiction/disposition hearing and submitted on the recommendations in the
Department’s jurisdiction/disposition report. The juvenile court adopted the findings and
orders originally recommended by the Department, with the exception of the visitation
order. The juvenile court ordered that the mother not have visitation with the child until
she showed improvement in her parenting skills.
       G.     Six-Month Review: Status Review Reports and Trial Briefs
       On April 29, 2013, the Department filed a status review report for the six-month
review hearing, recommending that reunification services be terminated as to both
parents and a selection and implementation hearing be set.
       The mother had recently been arrested on misdemeanor charges but was not in
custody. The father had been sentenced to a four-year prison term for the charges
stemming from the October 8, 2012 incident. The child had not visited with the father
due to the father’s incarceration. The child remained in his concurrent foster home.
       On May 21, 2013, the Department filed a supplemental status review report. The
supplemental report contained the clerk’s minutes from the father’s February 19, 2013
sentencing hearing. The minutes reflected the four-year prison term and also that the
court had issued a 10-year post-trial protective order protecting both the mother and the
child. The father was to have no contact with either the mother or the child, except to the
extent permitted by a family, juvenile, or probate court order issued after the February 19,
2013 order was filed.



                                             5
       On June 17, 2013, the Department filed a trial brief in which it argued that
reasonable services had been provided to both parents. The Department noted that the
father had been incarcerated throughout the proceedings and that he had been remanded
to North Kern State Prison in Delano in February of 2013. The father had been provided
with workbooks to address his parenting skills and substance abuse. The father had
completed the workbooks but he had “not addressed the situation that led to the
dependency: domestic violence.”
       The father submitted a trial brief in which he argued that “despite his sentence, he
should be given an opportunity to reunify with his child.” The mother submitted a trial
brief in which she asked for six more months of services.
       H.      Six-Month Review Hearing: Father
       On June 26, 2013, a contested six-month review hearing was held as to the father
only. As to the mother, the matter was continued because one of her witnesses was
unavailable.
       The father informed the court that he had 10 months left to serve in prison. He
requested that services be extended until after he was released. He expressed frustration
that he did not have “any type of services” to do while he was incarcerated. The
Department opposed the father’s request for an extension of services.
       The juvenile court found that the return of the child to the father would create a
substantial risk of detriment and that there was clear and convincing evidence that the
father had failed to make substantive progress in his court-ordered treatment program.
The court terminated reunification services as to the father and set the matter for a
selection and implementation hearing.
       The father did not file a writ petition to challenge the termination of his
reunification services and the setting of the selection and implementation hearing. (See
§ 366.26, subd. (l); In re Janee J. (1999) 74 Cal.App.4th 198, 206 (Janee J.) [petition for



                                              6
writ review is “the exclusively prescribed vehicle for appellate review of an order setting
a .26 hearing”].)
       I.     Six-Month Review Hearing: Mother
       On July 10, 2013, a contested six-month review hearing was held as to the mother.
The mother testified that she was participating in a drug treatment program and attending
12-step meetings. She had a sponsor and a “mentor mom.” She had attended one
parenting class and was about to start another, and she was attending therapy. The
mother requested another six months of services.
       Referring to the psychological evaluations, the juvenile court found clear and
convincing evidence that the mother was suffering from a mental disability that rendered
her incapable of utilizing reunification services and that she was unlikely to become
capable of adequately caring for the child and having the child returned to her “within the
time allowed by law.” The court adopted the findings and orders in the Department’s six-
month review report, terminated reunification services as to the mother, and set the
matter for a selection and implementation hearing.
       J.     Section 366.26 Hearings
       The Department filed a section 366.26 hearing report on November 5, 2013. The
Department recommended termination of parental rights and adoption as the permanent
plan. The child remained in his concurrent home, where the prospective adoptive parents
had established a parent/child bond with him.
       At a hearing held on December 11, 2013, the father submitted the matter on the
Department’s report. The juvenile court adopted the findings and orders recommended
by the Department as to the father, thus terminating his parental rights. The court
continued the matter as to the mother, who had been appointed new counsel.
       The father filed a trial brief on March 7, 2014, stating that he was “contesting the
termination of parental rights.” Father identified three issues: (1) his family had been
willing and available to adopt the child; (2) he would be able to successfully reunify with

                                             7
the child after his release from prison; and (3) he had not been properly advised
throughout the case.
       On March 11, 2014, the father’s attorney filed a conflict of interest statement, and
a new attorney was appointed to represent the father.
       On March 25, 2014, the juvenile court reinstated the father’s parental rights so
both parents could have a contested section 366.26 hearing on the same date.
       On April 18, 2014, the mother filed a motion to vacate the jurisdictional findings.
The mother claimed she had not been properly advised of her constitutional rights or the
consequences of submitting the matter based on the social worker’s recommendations,
and she claimed she had received ineffective assistance of counsel.
       The father filed another trial brief on April 22, 2014. He indicated he would be
released from prison in June of 2014 and argued that he would be able to successfully
reunify with the child if he was given additional time after his release.
       On May 5 and 6, 2014, the juvenile court held a hearing on the mother’s motion to
vacate the jurisdictional findings. At the end of the hearing, the juvenile court ordered
the mother and the Department to further brief the issues concerning the mother’s motion
to vacate and continued the section 366.26 hearing to May 12, 2014.
       On May 12, 2014, the father filed a letter, in pro per, stating that he was confused
about his status. He asserted that he had written to his new attorney but she had not
responded. He explained that he had declined to appear at the May 5, 2014 hearing
because he did not want to lose his fire camp program or jeopardize his early release date.
He explained, “My goal is to get out as soon as possible to be able to participate in the
reunification service if possible . . . .” He asked that the juvenile court continue the
matter until after June 10, 2014, his anticipated early release date. The father stated that
he had asked his new attorney to make the same request of the court, and that he had
instructed her to “appeal any decision that the court might make” that might prevent him
from reuniting with the child.

                                              8
       Also on May 12, 2014, the juvenile court heard arguments regarding the mother’s
motion to vacate the jurisdictional findings. After denying the mother’s motion, the
juvenile court addressed the father’s letter. The court found no basis for the father’s
contention “that he wasn’t informed of what was going on.” The court denied the
father’s request to continue the selection and implementation hearing past the father’s
expected release date.
       The juvenile court then proceeded with the contested section 366.26 hearing. The
father’s attorney acknowledged that the 10-year no contact order had prevented visitation
as a part of reunification services. She noted that the father had completed the
workbooks that had been the only component of his reunification plan. She argued that
the services provided had not been reasonable and that the father’s parental rights should
not be terminated. She noted that it might be possible for the father to have visitation
with the child if the criminal no-contact order was modified.
       The juvenile court agreed that the father would need to get the criminal no-contact
order modified before he could have contact with the child. With respect to the issue of
reasonable services, the court stated that “with a no contact order in place, I don’t know
what else the Department could have done, other than provide him with the workbooks.”
       The juvenile court adopted the findings recommended by the Department. The
court terminated the parental rights of both the father and the mother. The court selected
adoption as the permanent plan for the child. The court set a permanent placement and
review hearing for November 18, 2014.
       K.     Writ Proceedings
       The mother filed a notice of her intent to file a writ petition on May 16, 2014.
Through his appointed counsel, the father filed a notice of his intent to file a writ petition
on May 20, 2014.
       The father subsequently filed a petition for extraordinary writ, in pro per,
indicating he was seeking review of the juvenile court’s May 12, 2014 orders. His pro

                                              9
per petition was filed on June 23, 2014. His appointed counsel attempted to file another
petition on June 25, 2014, but the petition was untimely. That petition would have raised
the issue of whether reasonable services had been offered to the father.
       The Department filed a brief in opposition to the father’s writ petition on July 8,
2014. In its brief, the Department contends substantial evidence supports the juvenile
court’s finding that reasonable services were offered to the father.3

                                   III.   DISCUSSION
       The father’s pro per writ petition states that the juvenile court’s order was
erroneous because he was not provided with his “legal documents” due to his
incarceration. He requests this court vacate the order designating adoption as the
permanent plan for the child. He also requests this court vacate the order setting the
matter for a section 366.26 hearing, order that reunification services be provided and/or
continued, order visitation, return or grant him custody of the child, and terminate
dependency.
       Although the factual basis for the father’s writ petition is not entirely clear, we
understand him to be challenging the juvenile court’s placement order and the
termination of his parental rights. (See Cal. Rules of Court, rule 8.456(a)(1) [“The
petition must be liberally construed”].4) We also interpret the father’s writ petition as

       3
          The Department does not contend that we should not consider the father’s pro
per writ petition. (See In re Barnett (2003) 31 Cal.4th 466, 469 [as a general rule,
“represented parties have no right to present their cases personally alongside counsel”];
see also People v. Brown (1986) 179 Cal.App.3d 207, 214-215; Lovret v. Seyfarth (1972)
22 Cal.App.3d 841, 857-858; Cal. Rules of Court, rule 8.454 [trial counsel is responsible
for filing writ petition].) With no opposition from the Department, we will exercise our
discretion to consider the petition.
        4
          The Department does not contend that the father’s writ petition is procedurally
inadequate because, for instance, it is not accompanied by a memorandum as required by
rule 8.456. (See Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583 (Glen C.)
[“points and authorities must, at a minimum, adequately inform the court of the issues
(continued)

                                             10
asserting that he did not receive the effective assistance of counsel at the section 366.26
hearing. We note that these are the only issues cognizable at this stage of the
proceedings. The father may not challenge determinations made prior to the
section 366.26 hearing, such as the reasonableness of the reunification services, even
though that issue was discussed at the section 366.26 hearing; nor may he challenge
counsel’s performance at earlier stages in the proceedings. (See Janee J., supra, 74
Cal.App.4th at pp. 211-212; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1157-1158
(Meranda P.).)
       The California Supreme Court has stated that “[t]he objective of the dependency
scheme is to protect abused or neglected children and those at substantial risk thereof and
to provide permanent, stable homes if those children cannot be returned home within a
prescribed period of time. [Citations.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
       “When the child is removed from the home, the court first attempts, for a specified
period of time, to reunify the family. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45,
52 (Celine R.).) When the child is under three years of age at the time of removal,
reunification services are presumptively limited to six months. (§ 361.5, subd. (a)(1)(B).)
Reunification services may be extended up to 18 months from the date of removal if the
juvenile court finds a substantial probability that the child will be returned to the physical
custody of his or her parent or guardian within that extended time period or that
reasonable services have not been provided to the parent or guardian. (Id., subd. (a)(3).)
       Where reunification efforts have failed, “ ‘the court must terminate reunification
efforts and set the matter for a hearing pursuant to section 366.26 for the selection and
implementation of a permanent plan. [Citation.]’ ” (Celine R., supra, 31 Cal.4th at


presented, point out the factual support for them in the record, and offer argument and
authorities that will assist the court in resolving the contested issues”].) Again, we
exercise our discretion to consider the petition on the merits, despite its deficiencies.


                                              11
p. 52.) “ ‘A section 366.26 hearing . . . is a hearing specifically designed to select and
implement a permanent plan for the child.’ [Citation.] It is designed to protect children’s
‘compelling rights . . . to have a placement that is stable, permanent, and that allows the
caretaker to make a full emotional commitment to the child.’ [Citation.]” (Id. at pp. 52-
53.)
       “The court has four choices at the permanency planning hearing. In order of
preference the choices are: (1) terminate parental rights and order that the child be placed
for adoption . . . ; (2) identify adoption as the permanent placement goal and require
efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order
long-term foster care. (§ 366.26, subd. (b).) Whenever the court finds ‘that it is likely
the child will be adopted, the court shall terminate parental rights and order the child
placed for adoption.’ (§ 366.26, subd. (c)(1).)” (Celine R., supra, 31 Cal.4th at p. 53.)
       “ The circumstance that the court has terminated reunification services provides
‘a sufficient basis for termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the child due to one or
more’ of specified circumstances. [Citation.]” (Celine R., supra, 31 Cal.4th at p. 53.)
       The father has not identified any applicable statutory exception to termination of
parental rights in this court, and he did not do so in the juvenile court proceedings. He
has not argued, for instance, that the parent-child relationship exception applies
(§ 366.26, subd. (c)(1)(B)(i)) or that the sibling relationship exception applies (id.,
subd. (c)(1)(B)(v)). (See gen., In re C.B. (2010) 190 Cal.App.4th 102, 123.) It is a
general principle of appellate practice that a judgment or order of a lower court is
presumed correct and that error by the lower court must be affirmatively shown.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564; 9 Witkin, Cal. Procedure (5th ed.
2008) Appeal, § 355, p. 409.) While this court is not required to examine the record for
arguable issues (see Glen C., supra, 78 Cal.App.4th at p. 580), we observe there is no
substantial evidence that the father “maintained regular visitation and contact with the

                                              12
child and [that] the child would benefit from continuing the relationship” such that the
parent-child relationship exception would apply. (§ 366.26, subd. (c)(1)(B)(i).)
Likewise, there is no substantial evidence that the child had “existing close and strong
bonds with a sibling” such that termination of parental rights would cause “substantial
interference with [the] child’s sibling relationship.” (Id., subd. (c)(1)(B)(v).) In fact, the
Department’s section 366.26 report reflects that the child did not “have a relationship
with his half-siblings due to the fact that they reside out of state . . . .”
       To the extent the father is alleging he received ineffective assistance of counsel,
we reiterate that our review of counsel’s performance is limited to the section 366.26
hearing. (See Meranda P., supra, 56 Cal.App.4th at pp. 1157-1158.) In order to
establish a claim of ineffective assistance of counsel, an appellant must show not only
that his attorney failed to act in a manner reasonably to be expected of attorneys
practicing in the field of dependency law, but that counsel’s failures resulted in prejudice.
(In re Arturo A. (1992) 8 Cal.App.4th 229, 237.) Prejudice is shown if there is a
reasonable probability that a result more favorable to the appealing party would have
been reached in the absence of error. (In re Kristin H. (1996) 46 Cal.App.4th 1635,
1668.) At the section 366.26 hearing, trial counsel did not argue that any of the
exceptions to termination of parental rights applied. However, as discussed above, the
record fully supports the trial court’s finding that the child was adoptable and its implied
determination that none of the statutorily specified circumstances provided a compelling
reason for finding that termination of parental rights would be detrimental to the child.
(See § 366.26, subd. (c)(1)(B); Celine R., supra, 31 Cal.4th at p. 53.) Thus, we find
nothing to indicate trial counsel was ineffective at the section 366.26 hearing.

                                      IV. DISPOSITION
       The petition for extraordinary writ is denied.




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                                ___________________________________________
                                BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




H.C. v. Superior Court (DSES)
H041016
