Filed 4/15/16 In re A.V. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re A.V., a Person Coming Under the Juvenile
Court Law.

FRESNO COUNTY DEPARTMENT OF                                                         F071708, F072609
SOCIAL SERVICES,
                                                                           (Super. Ct. No. 13CEJ300347-3)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
L.V.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Fresno County. Mary D. Dolas,
Commissioner. ORIGINAL PROCEEDINGS; petition for writ of habeas corpus.
         Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       L.V. (mother)1 appeals from the termination of parental rights to her son, A.V.
(the minor) under Welfare and Institutions Code section 366.26.2 On appeal and in her
related petition for writ of habeas corpus, mother contends her trial counsel rendered
ineffective assistance by failing to adequately research the law, which resulted in his
failure to draft, on her behalf, a valid written statement relinquishing her parental rights
and designating the minor’s godfather as the prospective adoptive parent of the minor and
his two half-siblings in compliance with the requirements of Family Code section 8700.3
Having consolidated the two cases on our own motion for purposes of hearing and
opinion, we affirm the termination order and deny the petition for habeas corpus.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In April 2014, the minor was detained as a newborn infant due to mother’s history
of substance abuse. Although the minor did not test positive for drugs at the time of his
birth, mother did not receive prenatal care and tested positive for methamphetamine in
February 2014.
       In July 2014, the juvenile court assumed jurisdiction over the minor under section
300, subdivisions (b) and (j), based on mother’s drug use and neglect of two of the
minor’s half-siblings, who were removed from mother’s care in November 2013, and
were the subject of separate dependency proceedings. In the minor’s case, mother was



1       In this opinion, certain persons are identified by initials, abbreviated names and/or by
status in accordance with our Supreme Court’s policy regarding protective nondisclosure. No
disrespect is intended.
2       Further statutory references are to the Welfare and Institutions Code unless otherwise
specified.
3       We do not analyze mother’s contention as it relates to the minor’s two half-siblings
because her paternal rights to those children had already been terminated in separate dependency
proceedings prior to counsel’s allegedly deficient attempt to effect a relinquishment of mother’s
parental rights to all three children. Thus, the arguments of the attorneys and the juvenile court’s
ruling at the subject section 366.26 hearing addressed the department’s rejection of the attempted
relinquishment of mother’s parental rights only as to the minor.


                                                 2.
bypassed for reunification services and a section 366.26 hearing was set for October
2014.
        In April 2014, the minor was placed in the same foster home with his two half-
siblings and in which the three children continued to live at the time of the section 366.26
hearing in the minor’s case. The hearing did not commence until June 2015, after the
Fresno County Department of Social Services (department) sought a couple of
continuances for the purpose of trying to locate a prospective adoptive home willing to
take placement of all three children.
        In its original section 366.26 report filed in October 2014, the department detailed
the absence of a parent/child relationship between mother and the children and her failure
to engage the children during supervised visits. The children’s godfather, N.M., told the
department that he was the one who was encouraging mother to attend supervised visits
and had been providing her with transportation to the visits.
        In an addendum report filed in February 2015, the department reported that N.M.
sought placement of all three children and submitted a home approval application on
January 23, 2015. The department noted it was in the process of inspecting N.M.’s home
and that it would assess him for placement of the children.
        At a section 366.26 hearing in April 2015, the juvenile court terminated mother’s
parental rights to the minor’s two half-siblings. Finding it was unlikely the minor’s half-
siblings would be adopted, the court found the appropriate permanent plan was for them
to remain in foster care with the permanent goal of a less restrictive placement.
        On May 1, 2015, mother’s counsel sent an e-mail to both the department’s counsel
and the social worker assigned to the minor’s case, stating that mother wished to
designate N.M. as a prospective adoptive parent of the minor and his two half-siblings
pursuant to Family Code section 8700. The e-mail also provided a contact telephone
number for N.M.



                                              3.
       On May 7, 2015, mother’s counsel filed a witness list and first amended statement
of issues, identifying the following as one of the contested issues for the upcoming
section 366.26 hearing in the minor’s case:

       “Whether CPS [(i.e., Child Protective Services)] abused its discretion in not
       accepting [mother’s] attempt to relinquish [the minor] to CPS for adoption
       by … [N.M.]. ‘Parents of a dependent child under court jurisdiction
       pursuant to section 300 retain the right to voluntarily relinquish their
       children for adoption. In fact, relinquishment is encouraged for parents
       unable to reunite with their child.’ (In re R.T. (2015) 232 Cal.App.4th
       1284, 1303 [(R.T.)].) ‘The relinquishing parent may name in the
       relinquishment the person or persons with whom he or she intends that
       placement of the child for adoption be made…’ (Fam. Code, § 8700,
       subd. (f).) If CPS refused to accept a parent’s attempted relinquishment,
       the trial court reviews CPS’s determination for abuse of discretion. (…R.T.,
       supra, at p. 1301.)”
       In an addendum report filed in June 2015, the department recommended
terminating mother’s parental rights to the minor and finding adoption to be the most
appropriate permanent plan. The department further recommended finding a permanent
placement living arrangement to be the most appropriate plan for his two half-siblings.
       According to the addendum report, there were currently no adoptive homes both
willing and able to provide a permanent plan for all three children. Regarding its
recommendation of a permanent plan of adoption for the minor, the department noted that
the paternal grandparents had expressed a willingness to adopt the minor and that on
April 8, 2015, an application had been submitted for them to be assessed for possible
placement. The department further reported there were other paternal relatives it was
also planning to explore for possible placement of the minor.
       Concerning the recommendation of a permanent planned living arrangement for
the minor’s half-siblings, the department noted that N.M. had expressed an interest in
taking placement and was currently being assessed by the home approval unit for
possible placement. The children’s foster parents reported that N.M. cared about the
children. However, due to his age, N.M. was “unable to actively play or run around with

                                              4.
the children as much.” Most of the time, N.M. would just sit while observing or talking
to the children.
       The section 366.26 hearing finally commenced on June 4, 2015. After the
department submitted on the reports, mother’s counsel called the social worker to testify.
The social worker confirmed she received counsel’s e-mail on May 1, 2015, stating that
mother wished to designate N.M. as a prospective adoptive parent and providing N.M.’s
contact phone number.
       The social worker confirmed she did not contact N.M. or assess him as a
prospective adoptive parent. According to the social worker’s testimony, although
N.M.’s home assessment was still underway, the department was not planning to have
him adopt the minor. When asked why N.M.’s home had not yet been approved, the
social worker testified there were “some criminal issues that may need an exception” and
that the “criminal exemption issues” related to N.M. himself and not someone else living
in the home.
       The social worker further testified that in her conversations with mother, mother
never specifically said she wanted to relinquish her parental rights and have N.M.
become the adoptive parent for the three children. Instead, about two weeks prior to the
section 366.26 hearing, mother asked the social worker about the home approval process
and when the minor would be placed with N.M.
       The social worker initially testified that, as far as she knew, no one from the
department had ever advised mother she could relinquish the minor or had the right to
designate a potential adoptive parent. Later in the hearing, however, the social worker
concluded her earlier testimony was mistaken based on her review of the June 24, 2014,
disposition report, which was written by a different social worker and reflected that
mother had been advised of her right of relinquishment. This was a common practice for
the department prior to disposition. None of the previous social workers reported that



                                             5.
mother had ever sought to relinquish her parental rights and have N.M. designated as a
prospective adoptive parent.
       N.M. testified he was the minor’s godfather and wanted to adopt the minor. He
denied having ever been convicted of a criminal offense. When asked how he knew
mother, N.M. testified that she used to take his clothes over to be sewn by her mother.
Regarding how he became the minor’s godfather, N.M. testified, “Well, because when I
started going over there, [mother] had the child and she asked me if I want to be the
[g]odfather of her kids. I said yes.” N.M. testified he asked for placement of the minor
two to three months earlier because he saw no one else had asked for the minor.
       Mother testified she was willing to have the minor adopted by N.M. and to
designate him as the prospective adoptive parent, but the department never asked her to
sign anything indicating she was willing to do this. When asked when she decided she
wanted to relinquish her parental rights, mother testified “since they told me that I was
going to lose my parental rights.” Mother estimated this was approximately two months
before the section 366.26 hearing in the minor’s case. Mother further testified that N.M.
was a close friend to her family and that she had met him through her late mother who
had been a seamstress.
       Mother testified that N.M. used to help her out with grocery shopping and buying
school clothes for her children. He would also help by picking up her and the children
when she had trouble with transportation. When asked why she wanted N.M. to be the
prospective adoptive parent of the minor, mother testified: “Because he’s the only person
that I have that could help me out especially with my kids. Well, because as you see, my
mom passed away. My mom used to be—I don’t have no … other type of support that
can help me out.”
       After listening to the arguments of counsel, the juvenile court ruled as follows:

            “At this point, we are here today for a [section 366.26] report and
       recommendation as it pertains to the minor…. The Department is


                                             6.
recommending at this time that the Court find adoption be the most
appropriate permanent plan. There is contest today and raised the issue as
to whether the Department abused its discretion in not accepting mother’s
attempt to relinquish [the minor] for adoption and identify the [g]odfather
[N.M.] as a potential person to adopt the minor.

        “In reviewing the case cited, [R.T., supra, 232 Cal.App.4th 1284],
the Court has also reviewed the statute, primarily … Section 361, I believe
it’s subsection B, first identifies—which is essentially a disposition issue—
one of the possible considerations at disposition as to consider a
relinquishment of the child filed by the parent. And, again, if there’s no
relinquishment, there’s a consideration as to whether the minor could be
removed from the parent and other dispositional options. But I think that’s
why at disposition and the disposition report in this case did reflect mother
was advised of the right to relinquish and apparently at that time, which is
consistent with testimony, she chose not at that time to relinquish—
voluntarily relinquish her parental rights.

        “In reviewing the Family Code statute—and again consistent with
[R.T., supra, 232 Cal.App.4th 1284], Family Code Section 8700 clearly sets
out the requirements in regards to a parent’s desire to voluntar[ily]
relinquish their parental rights ant it clearly states—and that’s consistent
with the case—that either birth parent—or a birth parent may relinquish for
adoption a child to either the Department of Social Services, a county
adoption agency or a licensed adoption agency. Relinquishment must be
made by the parent in a written statement signed before two witnesses and
then acknowledged before an authorized official of the Department or
agency. The Department does or—the adoption agency or the Department
does have the option to accept or deny the relinquishment statement but it
does require it be on a statement I think for obvious reasons. The
Department can’t just assume that from a parent based on a conversation or
anything else. It’s clear in the statute. It’s clear also in … [R.T., supra, 232
Cal.App.4th 1284] where, in that particular case, the parents did execute a
relinquishment statement that subsequently in that case was denied by the
Department and then it was an issue on appeal as to whether—for the court
to determine whether the Department exercised—whether that was done
appropriately.

       “But in this case, I think it’s clear that there was discussion.
Apparently mother’s counsel did notify the Department that mother was
interested in relinquishing and identifying somebody. The Department
indicated she did speak to mother she, not in those exact words, discussed
the possibility of wanting to maybe relinquish and identify somebody but I


                                       7.
       don’t think that meets the criteria in that it’s not a signed statement and
       witnessed by at least two others indicating mother or the parent’s desire to
       want to do this.

               “So there’s no written statement as to whether the Department
       abused its discretion in not accepting, I don’t think that can before the
       Court since we don’t have a valid relinquished statement signed by the
       parent and by two witnesses. So, therefore, the Court, without any further
       evidence to consider, having read and considered the various reports as to
       [the minor], I do find that there’s clear and convincing evidence that it’s
       likely [the minor] will be adopted given his age, he’s emotionally,
       physically, and psychologically healthy, clearly has the ability to form
       relationships and so, therefore, will find given all that and the fact that
       there’s been no other evidence pertaining to any exception to adoption, the
       Court will find that adoption is the appropriate permanent plan for [the
       minor].”
                                       DISCUSSION
       Mother contends she received ineffective assistance due to her counsel’s failure to
adequately research the law, which she claims resulted in his failure to prepare an
effective written statement relinquishing her parental rights and designating N.M. as the
prospective adoptive parent of the minor in compliance with the requirements of Family
Code section 8700. We disagree.
       Section 317.5, subdivision (a), provides “[a]ll parties who are represented by
counsel at dependency proceedings shall be entitled to competent counsel.” In order to
establish that her counsel was ineffective, mother must demonstrate both that: (1) her
appointed counsel failed to act in a manner expected of reasonably competent attorneys
acting as diligent advocates; and that (2) this failure made a determinative difference in
the outcome, rendering the proceedings fundamentally unfair in that it is reasonably
probable that but for such failure, a determination more favorable to her interests would
have resulted. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98 (Dennis H.).) Mother has
not met her burden on either element in this case.
       Mother contends the first element was met by her counsel’s failure to research the
law, asserting there can be “no satisfactory explanation for trial counsel’s failure to


                                              8.
prepare a valid relinquishment, other than his lack of research and understanding of the
requirements of Family Code Section 8700, subdivision (a).” 4 The record not only fails
to support mother’s assertion but provides support for the opposite conclusion, namely,
that counsel did research the law and was aware of the legal requirements for preparing a
valid relinquishment. Notably, in the proceedings below, counsel relied on the same
legal authorities concerning those requirements which mother now relies on to support
her claim that counsel rendered ineffective assistance. Counsel’s statement of contested
issues for the section 366.26 hearing specifically cited both Family Code section 8700
and R.T., supra, 232 Cal.App.4th 1284, authorities the juvenile court also referenced in
explaining its ruling.
       The court of appeal in R.T., supra, 232 Cal.App.4th 1284, provided a detailed
description of the applicable procedures for effectuating a valid relinquishment of
parental rights in the dependency context, including the following:

              “A parent may voluntarily relinquish a child for adoption and, when
       doing so, may designate the person with whom the parent intends the child
       to be placed. (Fam. Code, § 8700, subds. (a) & (f).) Generally, parents
       considering relinquishment to a public adoption agency contact the agency,
       which assesses the child for adoption and advises the parents of their
       rights. [Citations.] There are several regulatory prerequisites to agency
       acceptance of a parent’s relinquishment. Among them, ‘the agency shall
       determine and document in the case record: [¶] (1) That the parent has
       chosen the plan of adoption for the child and freely chooses to relinquish
       the child. [¶] (2) That the agency is able to place the child for adoption. [¶]
       (3) Whether the child is subject to the provisions of the [Indian Child
       Welfare Act of 1978]. [¶] … [¶] (4) That the parent has received required
       services and advisement as appropriate to the category of parents as
       described [in the regulations]. [¶] (5) That the parent has the ability to


4       Family Code section 8700 provides, in pertinent part: “(a) Either birth parent may
relinquish a child to the department … for adoption by a written statement signed before two
subscribing witnesses and acknowledged before an authorized official of the department .… [¶]
… [¶] (f) The relinquishing parent may name in the relinquishment the person or persons with
whom he or she intends that placement of the child for adoption be made by the department .…”


                                             9.
understand the content, nature and effect of signing the relinquishment.’
[Citation.]

       “The regulations do not specify how an agency determines if it ‘is
able to place the child for adoption.’ [Citation.] This provision has been
understood to mean that an agency will not accept a designated
relinquishment until it completes an approved home study of the designated
placement and determines the placement to be in the child’s best interest.
[Citation.].…

       “When accepted, an effective relinquishment is accomplished ‘by a
written statement signed before two subscribing witnesses and
acknowledged before an authorized official’ of the State Department of
Social Services (department), county adoption agency or licensed adoption
agency. [Citation.] The statement is made on a form provided by the
department, which contains a section for the name of the agency and the
signature of the acknowledging official. [Citation.] ‘At the time the
relinquishment document for adoption is signed, the agency shall: [¶] (A)
Request the parent to read and sign the [statement of the adoption process]
pursuant to Family Code section 8702. [¶] (B) Advise the parent of the
provisions of Family Code Section 8701 [(concerning the parent’s right to
request information on the status of the adoption)]. [¶] (C) Accept the
relinquishment by signing the acknowledgment portion of the
relinquishment document. [¶] (D) Give the parent a copy of the completed
relinquishment document.’ [Citation.]

         “The agency accepting the relinquishment must file it with the
department within 10 days of the document’s signing, unless the parent
agrees to a longer holding period. [Citations.] With limited exceptions, the
relinquishment is final 10 business days after the department’s receipt of
the filing. (Fam. Code, § 8700, subd. (e)(1).) ‘After the relinquishment is
final, it may be rescinded only by the mutual consent of the … agency … to
which the child was relinquished and the birth parent or parents
relinquishing the child.’ (Id., § 8700, subd. (e)(2).) The agency to which a
child has been freed for adoption by relinquishment is responsible for the
child’s care until an order of adoption is granted. (Id., § 8704, subd. (a).)
[¶] … [¶]

       “The agency [has discretion to] refuse a designated relinquishment
based on a child’s best interest.… Regulations provide that an agency
must determine it ‘is able to place the child for adoption’ before accepting a
relinquishment. [Citation.] While the regulations do not explicitly so state,
the child’s best interests undoubtedly should be taken into account in



                                     10.
       determining whether to accept a designated placement. [Citation.].… [¶]
       … [¶]

              “An evaluation of the best interest of a child offered for adoption
       requires a balanced evaluation of the benefits and detriments of the
       proposed adoption. A guideline for making such an evaluation is found in a
       regulation used to assess an applicant for adoption. [Citation.] In assessing
       adoptive applicants, the agency weighs a variety of factors that include the
       applicant’s personal characteristics, financial stability, and ‘commitment
       and capability to meet the needs’ of the child. [Citation.].… [¶] … [¶]

               “Given the important interests involved, the juvenile court may …
       review for abuse of discretion an agency’s rejection of a parent’s voluntary
       relinquishment of a dependent child for adoption. In such matters, the
       juvenile court is to assess whether the agency ‘“acted arbitrarily and
       capriciously, considering the minor’s best interests.” [Citations.]’
       [Citation.] An abuse of discretion is also established if the agency applies
       an incorrect legal standard to the facts [citation] or if the agency’s decision
       is ‘“patently absurd or unquestionably not in the minor’s best interest.”’”
       (R.T., supra, 232 Cal.App.4th at pp. 1301–1303, 1305–1307, fn. omitted,
       italics added.)
       The multiple references to and direct quotations from Family Code section 8700
and R.T., supra, 232 Cal.App.4th 1284, made by mother’s counsel in the proceedings
below tend to contradict mother’s claim that counsel failed to research or understand the
applicable law. Nor is such failure demonstrated by counsel’s declaration, which mother
has submitted in support of her petition for habeas corpus.
       In his declaration, counsel claims the e-mail he sent to the social worker and the
department’s counsel on May 1, 2015, was “intended to effect a relinquishment of
[mother’s] children but it was not a written statement by [mother] signed by two
subscribing witnesses and acknowledged by an authorized official of the Department.”
However, counsel does not explain why he did not prepare such written statement but
simply states “I had no strategic reason for not having attempted to do so.” Thus,
counsel’s declaration does not establish a link between his failure to prepare a written
statement of relinquishment and his alleged failure to research or understand the law.



                                             11.
       Counsel’s claim that he intended his May 1, 2015 e-mail to effect a relinquishment
of mother’s children strains credibility in light of counsel’s multiple citations in the
juvenile court to pertinent legal authorities, which, as already discussed, detailed the
requirements for a valid relinquishment of parental rights. On its face, counsel’s e-mail
appears to have been intended merely to notify the department of mother’s wishes to
designate N.M. as the prospective adoptive parent. There was nothing unreasonable
about counsel contacting the department by e-mail to communicate mother’s wishes in
this regard. Because the department had not yet completed its assessment of N.M.’s
home at the time of counsel’s e-mail, the department would not have been able to accept,
and thus it would have been fruitless for counsel to have presented the department with, a
formal written relinquishment of mother’s parental rights. (See R.T., supra, 232
Cal.App.4th at p. 1302.)
       However, even assuming mother sufficiently demonstrated her counsel failed to
act in a manner expected of reasonably competent counsel, she has not demonstrated any
prejudice resulted. As just discussed, the department could not have accepted a written
relinquishment designating N.M. as the prospective adoptive parent of the minor until
after it completed its assessment of N.M.’s home. It would have made no difference,
therefore, if instead of e-mailing the department, mother’s counsel had instead prepared a
written statement in accordance with the requirements of Family Code section 7800.
       But even accepting, for argument’s sake, mother’s assertion that, but for counsel’s
failure to prepare a valid written statement, the juvenile court would probably have
granted counsel’s request for a continuance of the section 366.26 hearing for the
department to complete its assessment of N.M., mother has still not shown counsel’s
failure made a determinative difference. (Dennis H., supra, 88 Cal.App.4th at p. 98.) It
is clear from the social worker’s testimony at the section 366.26 hearing that the
department was disinclined to place the minor with N.M. regardless of the outcome of the
assessment and mother has not shown the department’s anticipated rejection of N.M. as a

                                             12.
prospective adoptive parent of the minor would likely have been deemed an abuse of the
department’s discretion and reversed by the juvenile court.
       Mother’s prejudice argument seems to assume that placement with N.M. was in
the minor’s best interests because N.M. was willing to adopt the minor’s two half-
siblings. But we see no basis in the record to conclude that such willingness would likely
have been the deciding factor in finding placement with N.M. to be in the minor’s best
interests, particularly in light of evidence the minor had paternal relatives who were
willing and had recently applied to adopt him. Other evidence in the record casting doubt
on mother’s assumption that placement with N.M. was in the minor’s best interests
included evidence that N.M. suffered from age-related physical limitations affecting his
ability to engage actively with young children and that the department had concerns
about his criminal background requiring further investigation.
       Because mother has failed to demonstrate she was prejudiced by counsel’s failure
to prepare a valid written statement relinquishing her parental rights and designating
N.M. as the minor’s prospective adoptive parent, mother’s ineffective assistance of
counsel claim necessarily fails.
                                      DISPOSITION
       The order terminating parental rights is affirmed. The petition for writ of habeas
corpus is denied.

                                                                 _____________________
                                                                              HILL, P.J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
PEÑA, J.


                                            13.
