In re Evelyn H. CA2/2 ( 2014 )

Filed 4/1/14 In re Evelyn H. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re EVELYN H. et al., Persons Coming B253817
Under Juvenile Court Law.
_____________________________________ (Los Angeles County
Super. Ct. No. CK88230)
J.H.,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of
Court, rule 8.452.) Marilyn Kading Martinez, Commissioner. Petition denied.
Los Angeles Dependency Lawyers, Inc., Law Office of Marlene Furth, Danielle
Butler Vappie and Carolina Villamil for Petitioner.
No appearance for Respondent.
Office of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County
Counsel, for Real Party in Interest.
__________________
J.H. (father) has filed a petition for extraordinary writ (Cal. Rules of Court, rule
8.452) challenging the juvenile court’s order setting a hearing pursuant to Welfare and
Institutions Code section 366.26.1 We deny the petition.
FACTS AND PROCEDURAL HISTORY
On December 3, 2012, the Los Angeles County Department of Children and
Family Services (DCFS) filed a section 300 petition concerning the four children of
Melody H. (mother). At that time, the children were ages five, three, two and one.
DCFS alleged that mother had hit one of the children with a shoe, had a violent
altercation with a maternal aunt in the children’s presence, had a history of substance
abuse, including methamphetamine, and currently abused alcohol and marijuana. DCFS
alleged that father had failed to provide the children with the necessities of life.
The family had most recently come to DCFS’s attention via a referral on
August 23, 2012. At that time, mother told DCFS that J.H. was the biological father of
her two youngest children, Evelyn and Jacob. Mother said that father had not had any
contact with the children for six months, and although he would call to see how they were
doing, he did not visit them. Mother said that father lived in Tijuana, Mexico. In its
detention report, DCFS listed father’s whereabouts as “unknown.”
On November 30, 2012, DCFS initiated a due diligence search request for father.
DCFS had four possible addresses for father but he did not live at any of them.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
DCFS conducted another due diligence search in anticipation of the
jurisdiction/disposition hearing on January 3, 2013. At that time, DCFS still listed
father’s whereabouts as “unknown.” Although DCFS sent notices to mother and to the
father of her two older children, DCFS did not send any notices to father. Father did not
appear for the jurisdictional hearing on January 3, 2013. The juvenile court found that
notice had been given as required by law, sustained the section 300 petition, as amended,
and declared all four children to be dependents of the court. However, the court declined
to make any paternity findings at that time. The clerk of the juvenile court mailed a
certificate of the court’s minute order to mother at her last known address. The clerk’s
certificate listed the address of each father as “unknown.”
On February 6, 2013, DCFS filed a subsequent petition (§ 342), adding allegations
against mother, but not against either father. At that time, mother claimed she did not
have any information about father, nor did DCFS have any contact information for him.
In its report prepared for the March 12, 2013, jurisdiction/disposition hearing on
the subsequent petition, DCFS reported that father was living on Mace Place in Los
Angeles. DCFS sent a notice of that hearing to father at the address on Mace Place.2
DCFS recommended that neither father be offered reunification services. The juvenile
court continued the hearing several times, and sustained the subsequent petition, as
amended, on May 13, 2013.
Father made his first juvenile court appearance at the six-month status review
hearing on November 7, 2013. Steve Lory, an attorney from Los Angeles Dependency
Lawyers 2 (LADL2), informed the court that he was available for appointment for father,
but requested that if he were appointed, his appearance be a special appearance only
because there were several issues, including notice, that needed to be investigated. The
court continued the matter to January 14, 2014. The court’s minute order indicated that
Mr. Lory was making a special appearance for father.
2 At the six-month review hearing on January 14, 2014, father told the juvenile
court he had never lived on Mace Place.
3
DCFS prepared a status review report in anticipation of the January 14, 2014
hearing. DCFS interviewed father on December 31, 2013. At the time of his interview,
father was living in Wilmington. Father said he was interested in caring for his children,
but the place where he was staying was not suitable for them. When asked how he would
provide for the children financially, father replied that he had no job. Father had not
visited the children since they had been placed in their current foster home. DCFS
opined that it would not be in the children’s best interest to give father reunification
services because of his unstable living arrangements and lack of income.
On January 14, 2014, father appeared in juvenile court for the continued six-month
hearing. Attorney Carolina Villamil of LADL2 made a special appearance on behalf of
father. Father informed the court that he had spoken with the social worker, who
recommended that he ask “you guys” for visitation rights. Father told the court he would
like to visit with his children because he had not seen them in months. When the court
asked father when he thought he had last seen the children, he said it was “before April”
2013. When asked how many times he had visited Jacob during Jacob’s life, father
replied, “I had him for one month, and then she [mother] told me she had court.” Mother
told him she had not appeared “at two courts already, . . . and then I find out [a] couple
months later . . . they’ve been detained since April [in] foster care.” The court confirmed
that it had not made any paternity findings and that father was the alleged father of
Evelyn and Jacob. Father said he had been at the hospital for Evelyn’s birth but “didn’t
make it to Jacob’s.” The court found father was the alleged father of Jacob and the
presumed father of Evelyn.3 The court made the latter finding at the request of
Ms. Villamil. The court also found the Indian Child Welfare Act did not apply to father,
who informed the court that he had no Native American heritage. The court terminated
reunification services for mother (whose whereabouts were then unknown). The court
ordered that father have monitored visitation with the children at the social worker’s
office, once every other month. The court commented that although LADL2 did not
3 Father is listed on Evelyn’s birth certificate but not Jacob’s.
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presently represent father, if LADL2 later did undertake to represent father “they should
file a [section] 388 petition seeking appointment and asking for any modification of
orders that I’m not modifying today. I am authorizing the visitation.” The court ordered
father to keep the court informed of his whereabouts, and directed Ms. Villamil to give
father a copy of the appropriate form. The court advised father that if he changed his
address and did not keep the court informed of his current address, “the court could
proceed in your absence and resolve issues against you, including terminating your
parental rights.” Later on in the hearing, father said he had been living in shelters for
over a year until he moved to Wilmington two months before the hearing. Father said he
had been “relocating for years already. Never been stable.” Father also asked if he
“could get some family reunification services so I could get some help.” The court
denied the request, stating, “We are beyond reunification.” The court ordered father to
return to court on February 27, 2014.
Addressing Ms. Villamil, the juvenile court stated: “I will have an expectation
that you will know on that date whether or not you’re going to accept appointment, and if
you are, you now have a month and a half. I’m urging you to make that decision rapidly,
and if you’re going to seek appointment, perhaps file an attorney order asking that you be
formally appointed so I can do that forthwith. And then I will expect that you will have
reviewed the file and be prepared to make specific requests.” At the conclusion of the
hearing, father asked that his visitation be increased to once a month. The court declined
the request because the children did not have any relationship with father. The court said
it could reconsider that ruling at the February 27, 2014 hearing, after father had at least
one visit.
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DISCUSSION
Father first contends the juvenile court deprived him of counsel, in violation of
section 317, subdivision (b).4 Equating Mr. Lory’s special appearance with a formal
appointment, father claims that the court appointed LADL2 to represent him on
November 7, 2013, then changed “not only the nature of father’s appearance by asking
father questions directly instead of through counsel,” but withdrew an appointment it had
“made more than two months prior.”
The record does not support father’s argument. At the November 7, 2013 hearing,
attorney Lory informed the juvenile court that he was “available for appointment for the
father but specially appearing.” Mr. Lory stated that “we haven’t done anything because
it looks like there are some notice issues that need to be investigated. We would just ask
that today if we are appointed, that it just be a special appearance so we can investigate a
lot of these issues.” Contrary to father’s claim, the court did not appoint counsel for him
at that time.
On January 14, 2014, Ms. Villamil informed the juvenile court that she was
“specially appearing on behalf of [father].” Ms. Villamil did not ask to be formally
appointed as father’s counsel. When the court continued the matter to February 27, 2014,
the court informed Ms. Villamil it expected that “you will know on that date whether or
not you’re going to accept appointment . . . . I’m urging you to make that decision
rapidly, and if you’re going to seek appointment, perhaps file an attorney order asking
that you be formally appointed so I can do that forthwith.” Ms. Villamil did not respond,
and, more to father’s point here, did not claim the court had “revoked” any prior
appointment.
4 Section 317, subdivision (b) provides: “(b) When it appears to the court that a
parent or guardian of the child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home care, or the
petitioning agency is recommending that the child be placed in out-of-home care, the
court shall appoint counsel for the parent or guardian, unless the court finds that the
parent or guardian has made a knowing and intelligent waiver of counsel as provided in
this section.”
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Father speculates that, had the juvenile court formally appointed LADL2 to
represent him prior to setting the section 366.26 hearing, counsel would have been able to
file a formal motion challenging the court’s jurisdiction over father based on lack of
proper notice. Father claims he has been prejudiced by the lack of a formal appointment
of counsel because his burden after the setting of a section 366.26 hearing is far more
cumbersome than if the juvenile court had addressed the matter prior to calendaring a
selection and implementation hearing. However, counsel did not seek formal
appointment prior to the selection and implementation hearing. As the court noted, father
can raise any notice issues (and seek the formal appointment of counsel) by way of a
petition pursuant to section 388.
Father has failed to demonstrate that he was deprived of effective assistance of
counsel as a result of having counsel appear specially. We agree with DCFS that father
had the benefit of the assistance of counsel even though counsel appeared specially at the
January 14, 2014 hearing. Ms. Villamil advised the juvenile court that father was
requesting visitation with the children, requested visitation for father more than once
every other month (the amount the court originally set), requested that father be found to
be the presumed father of Evelyn (a request the court granted), and assisted father by
providing him with appropriate forms to keep the court apprised of his current address,
and presumably, discussed father’s appellate rights with him.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is made final forthwith
as to this court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
ASHMANN-GERST
We concur:
__________________________, P. J. ________________________, J.
BOREN CHAVEZ
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