Filed 5/14/15 In re T.H. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

In re T.H., a Person Coming Under the                                H041342
Juvenile Court Law.                                                 (Santa Clara County
                                                                     Super. Ct. No. JD21486)

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

         Plaintiff and Respondent,

         v.

S.H.,

         Defendant and Appellant.



         The biological father of T.H. appeals the juvenile court’s order terminating his
parental rights and denying his Welfare and Institutions Code section 388 modification
petition seeking reunification services. He argues that trial counsel was ineffective by
failing to press the court for a presumed parent determination or argue for reunification
services under Welfare and Institutions Code section 361.5, subdivision (a)(4).1 For the
reasons stated here, we will affirm the order.




         1
        Unspecified statutory references are to the Welfare and Institutions Code.
Unspecified subdivision references are to section 361.5.
                                                             1
                          I. TRIAL COURT PROCEEDINGS
A.     BACKGROUND
       Appellant was incarcerated in October 2011 when his third child, T.H., was born.
Juvenile dependency proceedings commenced a year later, prompted by T.H’s maternal
grandmother’s guardianship request opposed by T.H.’s mother. At the October 31, 2012
initial hearing, the court authorized placement of T.H. with the maternal grandmother,
who had been caring for her since birth. The maternal grandmother was the legal
guardian of T.H.’s older sibling and two older half siblings.
       In October 2012 the Santa Clara County Department of Family and Children’s
Services (Department) filed a dependency petition listing appellant, who had never been
married to T.H.’s mother, as the alleged father. Appellant, incarcerated for a controlled
substance offense, was given notice and waived his right to attend the November 2012
jurisdiction/disposition hearing. He did not check the box on the waiver form requesting
counsel. Mother, with a history of methamphetamine abuse, received reunification
services at that hearing, and a six-month review was set for May 2013. Appellant also
waived his appearance at the May hearing, but he requested counsel who appeared on his
behalf and received a short continuance. Appellant did not appear at the next hearing in
June 2013 even though he had been released from prison. The matter was continued by
T.H.’s counsel for an early resolution conference.
       Appellant made his first personal appearance in this case in July 2013 to request
paternity testing. Appellant did not request reunification services at that time, and the
matter was reset for paternity results and a contested six-month hearing. According to
the Department’s July 15 addendum report, the social worker had informed appellant
before that hearing that he would be recommending termination of mother’s reunification
services. Based on a positive genetic test, in September 2013 the court declared appellant
T.H.’s biological father. Appellant was not present at that hearing and his attorney did


                                             2
not seek reunification services at that time. However, appellant was granted a
continuance to file an unspecified motion.
        In an addendum report filed at the September 2013 hearing, the social worker
reported that appellant was in New Jersey with family for personal reasons, and, although
he would like to have T.H. and her brother in his care when his living situation stabilized,
he was comfortable with his children living with their maternal grandmother at that time.
The social worker did not recommend reunification services for appellant given his lack
of a significant relationship with T.H. and the stable and nurturing family life T.H. was
enjoying with her grandmother and siblings.
        At the six-month review hearing, eventually held in October 2013, the court
terminated mother’s family reunification services and scheduled a section 366.26
selection and implementation hearing for February 2014.2 Appellant requested that T.H.
either be returned to him or placed with him with services, but the request was denied
because appellant had not filed a section 388 petition.3 On January 23, 2014, this court
issued a writ of mandate finding that the juvenile court erred in not entertaining
appellant’s reunification services request at the October 2013 hearing, and directing the
court to rule on appellant’s request before proceeding to a section 366.26 hearing. On
March 5, 2014, the juvenile court denied appellant’s request and reset the section 366.26
hearing.




        2
            The July and September addendum reports were admitted into evidence at that
time.
        3
          Section 388 allows a parent to petition the juvenile court to change, modify, or
set aside any previous order in a dependency action based on changed circumstances. A
section 388 petition is the proper mechanism for a parent to request reunification services
after a section 366.26 permanency hearing has been scheduled. (In re Zacharia D.
(1993) 6 Cal.4th 435, 454-455.)
                                              3
B.     APPELLANT’S 2014 SECTION 388 MODIFICATION PETITION
       1.     The Parties’ Positions
       On April 28, 2014, appellant filed a section 388 petition to modify the March 5
order. Appellant asked the court to order reunification services or place T.H. in his care
on a family maintenance plan. According to the petition, appellant had obtained stable
employment and housing, successfully completed probation, and established a
relationship with T.H. whom he was prepared to parent.
       At the June 6, 2014 hearing on appellant’s petition, the Department pressed that
appellant, as the biological father, was not (and had never been) entitled to reunification
services as a matter of right under section 361.5, subdivision (a). Appellant countered by
claiming that he had elevated his status over the last several months to that of a presumed
father entitling him to reunification services, and that those services could be provided
after the 18-month review date by continuing the matter under section 352. Counsel for
T.H. interjected that section 352 required a finding that any continuance be in the child’s
best interest regardless of appellant’s legal status, and it was not in T.H.’s best interest to
delay the permanency determination. The court noted that “the law [is] pretty clear in
this area,” that “we’re past the 18 months, and so it’s either return or move on.”
       The parties agreed that evidence received in connection with the section 388
petition could also be used for the trailing section 366.26 selection and implementation
hearing.
       2.     Testimony
              a.      Appellant
       Appellant testified that he was arrested in July 2011 and served a 23 month prison
sentence. In addition to T.H., appellant had two sons, ages 7 and 13. Appellant
described a “great relationship” with his children, but he was unaware that his 13-year-
old son had recent suicidal thoughts. Appellant had refrained from criminal activity since
his June 2013 release. He had successfully completed probation, obtained a job and a
                                               4
stable residence, and had taken self help and computer classes. He met a woman about
seven months before the hearing and had moved into her apartment, and they did not
intend to break up.
       Appellant received newborn pictures of T.H. while he was incarcerated. He called
the maternal grandmother often to speak with his daughter, who he met the day he was
released. He waived his appearance at the November 2012 jurisdiction/disposition
hearing and the May 2013 six-month review hearing to avoid having to extend the length
of his incarceration. He did not understand the import of the hearings, nor did he check
the box requesting counsel on the November 2012 waiver form. He secured an attorney
just before his release.
       Appellant described several visits with T.H., including overnight visits, initially at
his mother’s home but three at his girlfriend’s apartment after his mother passed away in
October 2013. He attributed the lack of visits in March and April 2014 to the material
grandmother’s inflexibility. He had family support and he was prepared to care for his
daughter full time.
       The wife of appellant’s brother also testified that appellant had been getting
himself “back on track” in recent months, and that she had observed an affectionate
relationship between appellant and T.H.
              b.      Social Worker Pham
       Department social worker Joseph Pham testified as an expert in risk assessment
and placement in dependency cases. Pham facilitated appellant’s visit with T.H. in May
2014. T.H. called appellant “Daddy” and enjoyed playing with him. Pham did not
observe a parent-child relationship but rather a friendly visit from someone who initiated
most of the affection. Appellant reported more visits with T.H. than the maternal
grandmother acknowledged, including the overnight visits after appellant’s mother
passed away, and Pham did not know which version of events was accurate.


                                              5
       Pham testified that T.H. had been living with her siblings in her grandmother’s
home nearly her entire life. She was healthy and thriving in her grandmother’s care.
Although appellant had taken positive steps since his release, his criminal history,
including firearm, controlled substance, and domestic violence offenses, remained a
serious concern and factored heavily into his opinion that T.H. should remain with her
grandmother.
       In a May 21 interim review report, Pham noted that appellant’s adolescent son had
expressed suicidal thoughts. The boy had been living with his paternal grandmother until
she passed away and was currently living with his mother who, recently released from
jail, had a history of mental illness and drug abuse. Pham expressed concern that
appellant did not feel the need to contact his emotionally unstable son, and he had a
broader concern that appellant had been unable to care for either son. The report also
noted that appellant’s girlfriend had a pending dependency action involving her three
children who did not live with her.
               c.    The Maternal Grandmother
       The maternal grandmother testified that she typically had initiated visits between
T.H. and the paternal family, and had provided the transportation for those visits.
Appellant declined an offer to visit T.H. on one occasion because he was busy celebrating
his own birthday. He had never provided financial support for T.H. or for his older son
also in her care. The maternal grandmother remained committed to adopting T.H., but
she was not opposed to T.H. and appellant having a relationship.
               d.    Social Worker Chung
       Social worker Nora Chung testified on behalf of T.H. as an expert in risk
assessment, placement, and reunification services for dependent children. Chung
considered T.H.’s attachment needs, her relationship with her grandmother and her
siblings, her relationship with appellant, and appellant’s current circumstances to
conclude that T.H.’s best interest would not be served by placing her with appellant. In
                                             6
Chung’s opinion, T.H. was securely attached to the maternal grandmother, who was fully
meeting T.H.’s physical and emotional needs. T.H. also was part of a family system,
having bonded with the three siblings with whom she also resided. T.H. viewed her
maternal grandmother, not appellant, as her psychological parent. Chung observed
appellant struggling to correctly read T.H.’s cues during a recent visit, and he had never
demonstrated a commitment to parenting his two older children. Chung did not feel
permanency should be delayed under the circumstances.
       3.     Closing Argument and Disposition
       Appellant’s counsel urged that T.H.’s best interest would be served by placing her
with appellant or providing appellant with family reunification services. Counsel argued
that appellant had elevated himself to a presumed father by taking T.H. into his home and
holding her out as his daughter, and that he was ready, willing, and able to care for her.
She noted that anytime before the section 366.26 hearing, even after the reunification
period had ended, changed circumstances can justify a placement change, and father had
met that burden. Counsel acknowledged that once reunification services terminate, focus
shifts to the child’s need for permanency and stability, and she argued that T.H’s needs
would be met by placing her with appellant. Counsel asked that T.H. be returned to
appellant’s care, or alternatively that the section 366.26 hearing be continued under
section 352 to provide for reunification services.
       On June 9, 2014, the court denied appellant’s modification petition. In its oral
pronouncement, it observed: “[T]he Court is mindful that we are at the 18-month date of
the taking into protective custody, so there is no provision in the law that would allow
this Court to extend services for additional time. The statute is very clear with respect to
time lines.” The court denied appellant’s request for placement as not being in T.H.’s
best interest, persuaded by social worker Chung’s testimony. The court adopted the
Department’s recommendations, terminated mother’s and appellant’s parental rights, and
freed T.H. for adoption by her maternal grandmother.
                                             7
                                      II. DISCUSSION
A.     LEGAL FRAMEWORK
       1.     Family Reunification Services
       Section 361.5 identifies eligible recipients of family reunification services in
dependency proceedings. Subdivision (a) directs the juvenile court to provide
reunification services to a dependent child’s mother and statutorily presumed father or
guardian. A man who has held the child out as his own and received the child into his
home is a “presumed father.” (Fam. Code, § 7611, subd. (d).) In contrast, biological
fathers are not entitled to reunification services as a matter of right, but only if the court
determines that services will benefit the child. (§ 361.5, subd. (a).)
       Section 361.5 also sets reunification timeframes. For a child under the age of
three such as T.H., services are to be provided for a minimum of six months but not more
than 12 months from the jurisdictional hearing. (§§ 361.5, subd. (a)(1)(B); 361.49.)
Subdivision (a)(3) allows reunification services to be “extended up to a maximum time
period not to exceed 18 months after the child was removed” if reasonable services have
not been provided or a substantial probability exists that the child will be returned to a
parent within the extended time period. (§ 361.5, subd. (a)(3).) Reunification services
are terminated at a section 366.22 permanency hearing, when the child is either returned
to her parent or legal guardian, or a selection and implementation hearing is set under
section 366.26. (§ 366.22, subd. (a).)
       In 2008 the Legislature amended section 361.5 to provide for postponement of a
permanency hearing and extension of reunification services, but only in narrowly
prescribed circumstances. (Stats. 2008, ch. 482, § 3, pp. 2807-2809.) Reunification
services may be extended up to 24 months if the permanent plan for the child is to be
returned and safely maintained in the home within that time period (§ 361.5, subd.
(a)(4)), but only after a hearing under section 366.22, subdivision (b). That provision
(also added in 2008) limits continuances to cases involving a parent or guardian recently
                                               8
released from incarceration and making significant and consistent progress to establish a
safe home for the child’s return, or a parent making significant and consistent progress in
a substance abuse treatment program, and the court must find by clear and convincing
evidence that the child’s best interest would be met by providing the additional
reunification services. (§ 366.22, subd. (b).) The court must also find that the parent (1)
“has consistently and regularly contacted and visited with the child,” (2) “has made
significant and consistent progress in the prior 18 months in resolving problems that led
to the child’s removal,” and (3) has the capacity and the ability to complete the substance
abuse treatment or post-incarceration treatment plan. (§ 366.22, subd. (b)(1)-(3).)
       Section 352 governs continuances of dependency hearings. Section 352,
subdivision (a) prohibits continuances contrary to the child’s interest. In considering the
child’s interests, the court must give substantial weight to a child’s need for a stable
environment and prompt resolution of custody status. (§ 352, subd. (a).)
       2.     Ineffective Assistance of Counsel
       All parties to a dependency proceeding are entitled to competent counsel. (§
317.5.) A parent alleging ineffective assistance of dependency counsel must show that
counsel failed to act in a manner to be expected of reasonably competent attorneys who
practice dependency law. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We
assume that counsel’s performance was not deficient when it could have been based on a
tactical decision. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Nor is counsel
ineffective by failing to undertake idle acts or press meritless arguments. (See In re
Joshua M. (1997) 56 Cal.App.4th 801, 808-810.) To prevail on an ineffective assistance
claim, the parent also must show prejudice-a reasonable probability that, but for counsel’s
failure to act, a different outcome more favorable to the parent would have resulted. (In
re Kristin H., at p. 1668.)




                                              9
B.     ANALYSIS
       Appellant argues that his dependency counsel rendered ineffective assistance by
not insisting that the juvenile court make a presumed parent finding at the section 388
modification hearing. At the outset, we do not agree with appellant’s underlying legal
position that he would have been statutorily entitled to reunification services had the
court deemed him a presumed father. Appellant cites an excerpt from subdivision (a)(4),
as “authoriz[ing] an additional period of six months when ‘reasonable services have not
been provided to the parent.’ ” But that clause cannot be read in isolation. Section 361.5
contemplates that reunification services will start when the child is removed and will
continue only so long as the permanent plan for the child is to be returned and safely
maintained in the home within the extended time period. (§ 361.5, subd. (a)-(b).) Here,
reunification services terminated after 11 months when the court concluded that there was
not a substantial probability that T.H. would be returned to her parents within another six
months. Appellant had not achieved presumed father status before reunification services
terminated, so he was not entitled to services as a matter of right under section 361.5
when he filed his section 388 modification petition. (In re Zacharia D., supra, 6 Cal.4th
at p. 453.)
       Further, court-ordered reunification services can only be extended under
subdivision (a)(4) after the 18-month mark if the court grants a continuance under section
366.22, subdivision (b). That subdivision-authorizing a court to continue a permanency
hearing up to six months provided the hearing occurs within 24 months after the child’s
original removal-requires a showing by clear and convincing evidence that additional
reunification services would be in the child’s best interest. Section 352, governing
dependency hearing continuances generally, also requires the court to consider the child’s
interest, and in particular to give substantial weight to a child’s need for a stable
environment and a prompt custody status resolution. (§ 352, subd. (a).)


                                              10
       After 18 months have passed and the court has terminated reunification services,
the statutory scheme requires the juvenile court to consider the child’s best interest when
ruling on a father’s request for reunification services, whether he is the biological father
or a newly designated presumed father. Counsel therefore did not perform deficiently by
arguing T.H’s best interest instead of pressing for a determination of appellant’s status.
       Appellant also argues that trial counsel was ineffective by arguing for
reunification services under section 352 instead of under the more specific subdivision
(a)(4). But, as we have explained, an extension of services under subdivision (a)(4)
requires reunification as the anticipated permanency plan. It also requires that the
permanency hearing be continued under section 366.22, subdivision (b), which requires a
showing that the continuance be in the child’s best interest. Appellant suggests that the
juvenile court was unaware of subdivision (a)(4), but the court may have been of the
mind that it simply did not apply. Even if we assume that the court was unaware of the
2008 amendments to sections 361.5 and 366.22, it is clear from the record that the court
did not consider reunification services at this late date to be in T.H.’s best interest.
Accordingly, appellant cannot show a reasonable probability of a more favorable
outcome had he expressly invoked subdivision (a)(4) instead of section 352. (In re
Kristin H., supra, 46 Cal.App.4th at p. 1668.)
                                    III. DISPOSITION
       The June 9, 2014 order is affirmed.




                                              11
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
