In re Cody R. ( 2018 )

Filed 12/17/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CODY R., a Person Coming
Under the Juvenile Court Law.
D073527
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J512459F)
Plaintiff and Respondent,
v.
SHAUNA R.,
Defendant and Appellant.
D074328
In re SHAUNA R.
on Habeas Corpus. (Super. Ct. No. J512459F)
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.
Shauna R. appeals from an order terminating parental rights to her son, Cody R.,
under Welfare and Institutions Code section 366.26. 1 She contends the order terminating
parental rights must be reversed because the San Diego County Health and Human
1 Further unspecified statutory references are to the Welfare and Institutions Code.
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
terminating parental rights on the ground the Agency did not give preferential placement
consideration to Cody's relatives. We therefore dismiss the appeal.
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 argues
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
2
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 purple. 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.
During his hospitalization, Cody gained almost five pounds in less than five days.
There was no other cause of failure to thrive other than malnutrition and neglect. Cody
was severely neurologically delayed due to psychosocial and nutritional deprivation.
Physicians characterized the parents' treatment of Cody as "essentially starvation" and
advised the social worker that Cody would be at risk of death if returned home.
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.
3
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 section 300, subdivisions (b)
[neglect] and (e) [severe physical abuse of a child under five years of age]. None of the
parties raised the issue of Cody's placement with a relative. The court removed Cody
from the care and custody of his parents, bypassed reunification services, and set a
section 366.26 hearing. The court advised the parents of their right to appeal but failed to
2 In a plea deal, the parents pleaded guilty to felony child abuse and were sentenced
to four years in state prison. The district attorney obtained an order prohibiting the
parents from having any contact with Cody for three years, and later sought a 10-year
restraining order.
4
inform them that proper review of an order setting a section 366.26 hearing was by way
of writ under California Rules of Court, rule 8.452. 3
Shauna nevertheless signed a notice of intent to file a writ petition on June 2,
which was filed on June 7. After review, however, her attorney notified Shauna and this
court that a writ petition under rule 8.452 would not be filed because there were no viable
issues for review. This court dismissed the matter on July 10, 2017.
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 to 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 section 300 petition on January 20 and detained him with the
NREFM. On January 27, the social worker placed Cody in a concurrent family home
with his current caregivers, who had an approved adoption home study.
During Cody's hospitalization, Aunt B., who was married to Shauna's brother
(Uncle N.), visited Cody while a social 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
3 Further unspecified rule references are to the California Rules of Court.
5
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 section 366.26 hearing. Shauna did not
want to meet with the social worker and did not provide any concurrent placement
recommendations for Cody.
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 care. The
grandmother said Shauna's behavioral issues dated back to early childhood. Shauna had
been diagnosed with borderline personality disorder with narcissism and rage. The
family was afraid of her and had distanced themselves from her. Shauna had a history of
filing false accusations of abuse against family members. The day after Uncle D. and his
girlfriend met with the social worker, child welfare services received a report alleging
they did not have electricity in the home, which was not true.
After the case was referred to a section 366.26 hearing, a new social worker was
assigned to the case. In August, in response to Shauna's inquiry why the case was in
adoptions while there was an appeal pending, the social worker said Shauna's
6
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 section 366.26 hearing was held on December 13, 2017. The social worker
reported that Cody had been living with his current caregivers since January 2017. Cody
looked to his caregivers to meet his emotional and physical needs. He was healthy and
was starting to reach age-related developmental expectations. His caregivers wanted to
adopt him and had an approved home study. Cody referred to his foster parents as
"mommy and daddy." When asked to identify his family, Cody described his foster
parents, his baby sister, and two dogs.
7
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."
C.R. did not testify. The parents argued the beneficial parent/child and sibling
bond exceptions to termination of parental rights existed. Neither parent raised any
issues concerning Cody's placement.
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 evidence 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 section 366.26 hearing. She argues the
Agency's failure to do so was prejudicial because the juvenile court may have placed
Cody with relatives had it properly applied the relative placement preference. Shauna
does not advance any claim that the juvenile court erred in terminating her parental rights
8
or that the outcome of the section 366.26 hearing would have been different had Cody
been placed with relatives.
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 section 366.26 hearing.
The Agency contends this court should dismiss Shauna's appeal for lack of
standing. The Agency observes that Shauna has not had any contact with Cody since
March 2017 and is prohibited from having any contact with him until at least 2020. She
has not raised any challenges to the juvenile court's findings that Cody was likely to be
adopted and that termination of parental rights would not be detrimental to him. The
Agency argues that reversal of the placement order would not advance Shauna's interest
in avoiding termination of parental rights.
B. Shauna Does Not Have Standing to Appeal
9
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 remains a possibility
is frivolous. Any placement error at the dispositional hearing would not have affected the
order bypassing reunification services and setting a section 366.26 hearing. The
Legislature requires the juvenile court to bypass services in cases like this one involving
a jurisdictional finding that the parent has inflicted severe physical harm on her child
unless the court finds, by clear and convincing evidence, that reunification is in the
child's best interest. (§§ 300, subd. (e), 361.5, subds. (b)(6)(C), (c)(2) & (f).) Because
the evidence clearly showed that Cody would be at risk of serious physical harm or death
if returned to Shauna's custody, the court did not make such a best interest finding. Thus,
4 The juvenile court incorrectly advised the parents they had the right to appeal and
if they decided to appeal, they were required to file a notice of appeal within 60 days.
Review of an order setting a section 366.26 hearing is by writ. (Rule 8.452.) A notice of
intent must be filed within a specified time period, usually within 7 days after the date of
the order setting hearing. (See rule 8.450(e).)
10
the court would have bypassed services and set a section 366.26 hearing whether Cody
was placed with a relative or in foster care.
"Whether a person has standing to raise a particular issue on appeal depends upon
whether the person's rights were injuriously affected by the judgment or order appealed
from. [Citation.] A person does not have standing to urge errors on appeal that affect
only the interests of others. [Citation.] Accordingly, a parent is precluded from raising
issues on appeal which do not affect his or her own rights." (A.K., supra, 12 Cal.App.5th
at p. 499.) The California Supreme Court has held that "[a] parent's appeal from a
judgment terminating parental rights confers standing to appeal an order concerning the
dependent child's placement only if the placement order's reversal advances the parent's
argument against terminating parental rights." (K.C., supra, 52 Cal.4th at p. 238.) 5
Shauna contends her argument concerning Cody's placement are challenges that
advance her argument against terminating parental rights. She contends that, unlike the
5 In A.K., the father challenged the termination order on the ground that the juvenile
court failed to assess the grandmother's request for the child's placement. The reviewing
court held that that father did not have standing because he could not establish that his
rights and interest in reunification were injuriously affected by any failure to consider the
grandmother's request for placement at the 366.26 hearing. (A.K., supra, 12 Cal.App.5th
at p. 499.)
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 placement 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.
11
parent in K.C., she argued at the section 366.26 hearing that the beneficial parent/child
exception existed. Shauna overlooks the fact she does not challenge on appeal the court's
finding there were no exceptions to termination of parental rights. She alludes to the
possibility that if Cody had been placed in the care of a relative, the relative would not
have been able to adopt and the court would have ordered a permanency plan of
guardianship, thus preserving Shauna's parental rights. Speculation about a hypothetical
situation is not sufficient to support standing. (Great Lakes Construction, Inc. v. Burman
(2010) 186 Cal.App.4th 1347, 1359 [a highly speculative interest does not meet the
standing requirements].)
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 available 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.
The record belies Shauna's claim that Aunt B., who was married to Shauna's
brother Uncle N., came forward to ask for Cody's placement before the dispositional
hearing. During Cody's hospitalization Aunt B. appeared reluctant to become involved in
Cody's case. Instead of promoting placement with Aunt B., Shauna became angry and
said Aunt B. would never see Cody again.
12
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 case. 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
13
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.
II. Writ of Habeas Corpus
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 section 366.26 hearing at the dispositional hearing.
Shauna states if she could have filed a writ petition after the dispositional hearing, she
would have argued the social worker misled her about Cody's placement, and misstated
and misapplied the law governing the relative placement preference.
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-grandmother (Grandma T.).
14
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.
Section 361.3 or section 388 provides an adequate and far more timely means to bring
new evidence concerning the child's placement to the attention of the juvenile court.
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 appellate court's attention
6 As we discussed, ante, at p. 11, any placement error at the dispositional hearing
would not have affected the order bypassing reunification services and setting a
section 366.26 hearing, and therefore complete reversal of the dispositional findings and
orders is not an appropriate remedy.
15
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 of 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
16
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 section 361.3, which is a
statutory issue, not a constitutional one. Habeas corpus extends to correct errors of a
fundamental jurisdictional or constitutional type only. (In re Harris (1993) 5 Cal.4th
813, 828; cf. In re Arturo A. (1992) 8 Cal.App.4th 229, 238 [as a general rule, to
determine whether a claim for reversal may be based on ineffective assistance of counsel,
one must review the issue in litigation to determine whether the right threatened is
fundamental].)
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
7 See generally, Moore v. City of East Cleveland, Ohio (1977) 431 U.S. 494, 503-
505 [recognizing that removal of a child from a relative's care may merit constitutional
protection].)
17
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 a petition for habeas corpus may be
used to present a claim of error that is supported, in pertinent part, by evidence not
included in the appellate record. In other words, Shauna seeks to use a habeas petition to
present a claim in this court that she did not present in juvenile court while represented by
competent counsel. In support of her theory, Shauna cites cases referring to the need to
present proof that goes beyond the existing appellate record. However, those cases
8 We also grant her motion to strike the affidavits.
18
concern claims of ineffective assistance of counsel, which as we have 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.3 122, 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 cases. (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
19
dependency cases, there is an alternative means to bring new evidence to the timely
attention of the juvenile court. Section 388 is often used in dependency proceedings to
seek modification of a prior placement order. (See also Isabella G. (2016)
246 Cal.App.4th 708, 723 [where the agency disregarded a relative's timely request for
placement, the relative is entitled to a § 361.3 hearing without having to file a § 388
petition].)
Shauna claims that if she had the prior opportunity to file a writ petition under
rule 8.452, she would have raised the issue of relative placement and therefore her current
petition for writ of habeas corpus is properly before this court. Her claim is without
merit. Shauna signed a notice of intent to file a writ petition on the day of the
dispositional hearing. In the absence of any claim of ineffective assistance of counsel, we
presume counsel competently performed her duties. Even were we to assume, as Shauna
argues, she did not receive either the July 7, 2017 letter from her attorney stating there
were no issues for writ review or the July 10, 2017 letter from this court dismissing the
writ petition under rule 8.452, Shauna was informed of the dismissal of her appellate
proceedings on August 10, 2017. The section 366.26 hearing was not heard until
December 13, 2017. She had ample time prior to the section 366.26 hearing to bring any
claim of new evidence or change in circumstance to the attention of the juvenile court by
filing a section 388 petition for modification of any placement order. Similarly, Shauna
cannot use a petition for writ of habeas corpus to submit evidence to this court that could
have been, but was not, presented by competent counsel to the juvenile court at the
section 366.26 hearing. (Alexander S., supra, 44 Cal.3d at pp. 867-868 [habeas corpus
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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.
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