In re Cassidy S. CA2/2 ( 2022 )

Filed 10/13/22 In re Cassidy S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re CASSIDY S., a Person B315634
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 17CCJP01621C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
ARTURO Y.,
Defendant and Appellant.
APPEAL from the order of the Superior Court of Los
Angeles County, Hernan D. Vera, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
******
The juvenile court found that Arturo Y. (Arturo)1 was a
young girl’s presumed father but not her biological father and
terminated Arturo’s parental rights in August 2021. On appeal
from the termination of his parental rights, Arturo claims that
the juvenile court’s September 2019 order ending the
reunification period and setting the matter for a permanency
planning hearing was defective for several reasons. We conclude
that Arturo’s arguments lack merit, and affirm the termination of
his parental rights.
FACTS AND PROCEDURAL BACKGROUND
I. Family
Lizbeth R. (mother) has three children—Jadyn Y. (born
2005), K’Lynn S. (born 2009), and Cassidy S. (born 2014). Each
child has a different father. Arturo is Jadyn’s father; Mark S.
(Mark) is K’Lynn’s father; and Cassidy’s father is unknown.
Between 2013 and 2017 Jadyn and Cassidy lived in the
home of mother’s parents, the maternal grandparents. During
1 Because there are multiple fathers involved in this case, we
refer to the fathers by their first names. We mean no disrespect.
2
that period of time, Arturo was also renting a room in the
maternal grandparents’ house and taking care of Jadyn.
K’Lynn was living with her father, Mark.
Mother would occasionally stop by the maternal
grandparents’ home to shower, but she was using drugs and
spending most of her time associating with other drug users,
many of whom were homeless.
II. Problems with Drugs and Domestic Violence
Back in 2017, mother had a significant drug problem.
In October 2017, mother and Mark got into a fight while
driving. With Cassidy in the back seat, Mark pulled over the car
and started “repeatedly” striking mother in the face. When
mother started screaming, the police responded and Mark
recklessly drove to evade the responding officers before
eventually pulling over. Once he stopped, mother fled out the
passenger side door. The police found marijuana and other
prescription drugs in the car. This was not the first incident of
domestic violence between mother and Mark: In the prior year,
Mark had struck mother on two different occasions, as well as
choked her, brandished a gun at her, and threatened to kill her;
mother also struck Mark in 2016, and was convicted of
misdemeanor domestic violence for doing so.
III. Petition
On November 7, 2017, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Jadyn, K’Lynn and Cassidy based on the following allegations:
(1) mother and Mark “have a history of engaging in violent
altercations in the children’s presence,” which places the children
at risk of physical harm and thereby warrants the exercise of
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dependency jurisdiction under Welfare and Institutions Code
section 300, subdivisions (a) and (b)2; (2) mother is “a current
abuser of amphetamines and marijuana, which renders [her]
incapable of providing regular care for the children” and thereby
warrants the exercise of dependency jurisdiction under section
300, subdivision (b); (3) mother’s conduct of driving with Cassidy
in a car with easily accessible drugs in October 2017 “placed . . .
Cassidy in a detrimental and endangering situation,” thereby
warranting dependency jurisdiction over all three children under
section 300, subdivisions (b) and (j); and (4) mother left Cassidy
in maternal grandmother’s care “without making an appropriate
plan for [Cassidy’s] ongoing care and supervision,” thereby
warranting dependency jurisdiction under section 300,
subdivision (b).3
IV. Arturo’s Request To Be Declared Cassidy’s Presumed
Father
The day after the Department filed its petition, Arturo filed
a petition asking to be declared Cassidy’s “presumed father.”
Arturo is not Cassidy’s biological father, but alleged that he
should be declared her presumed father because he has provided
for her “day to day care,” because he has paid her expenses, and
because he has been Cassidy’s “primary caretaker” since she was
seven months old.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3 The Department made additional allegations against Mark,
but Mark is not a party to this appeal, so we do not discuss him
further.
4
At the April 25, 2018 hearing, the juvenile court granted
Arturo’s application and declared him to be Cassidy’s presumed
father.
V. Juvenile Court’s Exertion of Dependency
Jurisdiction and Dispositional Orders
On April 25, 2018, the juvenile court sustained most of the
allegations in the petition pertaining to mother, and declared all
three children to be “dependents.” The court allowed Jadyn to
remain in Arturo’s custody, but ordered K’Lynn removed from
both mother and Mark, ordered Cassidy removed from both
mother and Arturo, and permitted Arturo to have unmonitored
visitation with Cassidy. Although the court at some points said it
was not making a “case plan” for Arturo, the court nevertheless
ordered “reunification” for “the minor and parents,” and went on
to expressly and specifically “order” Arturo to (1) “do a parenting
class” and (2) “engage in conjoint counseling with [Jadyn].”
VI. Reunification Period
Between April 2018 and September 2019, the Department
offered Arturo and mother reunification services. During that
period, Arturo never enrolled in the parenting class and never
attended any conjoint therapy sessions with Jadyn. Since moving
out of the maternal grandparents’ home in 2018, Arturo’s housing
had not been stable and his visitation with Cassidy had been
“sporadic” as conflicts between him and the maternal
grandmother deepened. As Cassidy became verbal, she reported
that she enjoyed the time she spent with Arturo, but repeatedly
called Mark—not Arturo—her “daddy.”
The juvenile court conducted the six-month review hearing
on October 24, 2018. Arturo’s attorney was present. Due to
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Arturo’s lack of progress, the court ordered that the Department
continue to provide services to him.
Setting the next review hearing proved to be more
challenging. The juvenile court originally set a hearing for April
24, 2019. Arturo’s attorney appeared, but the court continued the
hearing to June 12, 2019. When neither Arturo nor his attorney
appeared at the June 12, 2019 hearing, the court continued it to
September 3, 2019. Because that date was nearer to 18 months
than 12, the court considered it to be the 18-month review
hearing. Neither Arturo nor his attorney appeared at the
September 3, 2019 hearing. The juvenile court nevertheless
proceeded with the hearing, terminated reunification services for
“mother and father,” and set a permanency planning hearing for
Cassidy. At the conclusion of the hearing, the court orally
informed mother and Mark that they would “need to file a special
writ under the procedures described in the notice” if they
“desire[d] to challenge on appeal the court’s order terminating . . .
reunification services.” Because Arturo was not present, the
court clerk served on Arturo by first-class mail “the Notice of
Entry of the above minute order of September 3, 2019 and
form(s).”
Arturo did not seek a writ challenging the termination of
reunification services.
VII. Permanency Planning
After the juvenile court terminated reunification services,
Cassidy remained in the maternal grandparents’ custody. In
their care, Cassidy was “thriving” and “doing well”; she reported
feeling “safe” with them. Arturo’s visits with Cassidy continued
to be “sporadic” and his visits stopped altogether in February
2021. The reasons for Arturo’s lack of regular visitation were in
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dispute: Arturo blamed it on maternal grandmother not liking
him, and maternal grandmother indicated that Arturo was not
sticking to the agreed-upon visitation schedule. Arturo did not
enroll in conjoint counseling and the record does not reflect that
Arturo ever completed or enrolled in the ordered parenting class.
Cassidy at one point indicated that she wanted to “live with her
father” (who she viewed as Mark, and not Arturo), but later
expressed that she wanted to make her maternal grandparents’
home “her permanent home.”
After the maternal grandparents expressed a desire and
intent to adopt Cassidy, the Department explicitly recommended
that the permanent plan for Cassidy be adoption by the maternal
grandparents; the Department made that recommendation in its
March 3, 2021 report, in its addendum to that report, and in its
July 15, 2021 report. The July 15, 2021 report was served on
Arturo.
Setting the permanency planning hearing also proved to be
challenging. The hearing was originally set for January 14, 2020.
However, as the hearing on January 14 began, the court saw that
Arturo was not given proper notice, so the court ordered that
proper notice be given and continued the hearing to March 3,
2020. On March 3, 2020, counsel for all the parties appeared and
the court granted the Department’s request for a 60-day
continuance. Then the pandemic hit. At the next scheduled
hearing on March 15, 2021, neither Arturo nor his attorney were
present, so the juvenile court continued the hearing to May 3,
2021. On May 3, 2021, both Arturo and his attorney were
present, but the court continued the hearing to August 3, 2021,
and ordered the Department to prepare a report addressing
Cassidy’s wishes regarding placement, and Arturo’s visits with
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Cassidy and his involvement in her life. On August 3, 2021,
Arturo’s attorney was present; the court found notice to be proper
for all parties, but continued the hearing to August 31, 2021.
On August 31, 2021, both Arturo and his attorney were
present. Arturo nevertheless objected to the notice because it
listed his wrong address, it was untimely, and it did not lay out
that the Department sought to terminate his parental rights.
The trial court overruled Arturo’s objections to the adequacy of
the notice, pointing out that the prior reports indicated the
Department’s recommendation for “adoption,” which necessarily
contemplates the termination of parental rights. Arturo objected
to adoption, favoring legal guardianship instead. But the
juvenile court overruled that objection, finding that Cassidy was
adoptable and that there were no pertinent exceptions. The court
then terminated mother’s and Arturo’s parental rights over
Cassidy.
VIII. Appeal
Arturo filed this timely appeal.
DISCUSSION
In this appeal, Arturo does not challenge the juvenile
court’s order terminating his parental rights due to anything that
happened at the permanency planning hearing on August 31,
2021. Instead, he argues the termination of parental rights
should be overturned because of defects with the September 2019
hearing terminating reunification services and setting the matter
for a permanency planning hearing. As to defects at the
September 2019 hearing, Arturo points to (1) the Department’s
failure to interview him for the report immediately before that
hearing, (2) the defective notice he got for that hearing, which is
why neither he nor his attorney appeared, (3) the juvenile court’s
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failure to mention Arturo’s status as a presumptive father during
the hearing, and (4) the lack of evidence to support the court’s
setting the matter for a permanency planning hearing rather
than putting Cassidy back in Arturo’s custody.
Given “the state’s strong interest in the expeditiousness
and finality of juvenile dependency proceedings” (In re Zeth S.
(2003) 31 Cal.4th 396, 412 (Zeth S.)), Arturo faces an uphill climb
in asking that we effectively rewind the clock and start over from
a hearing that occurred more than three years ago. For three
reasons we detail below, that climb is insurmountable in this
case.
I. Procedural Bar
The Department argues that it is too late for Arturo to
raise defects with the order terminating reunification services
and setting the permanency planning hearing because the sole
means of appellate review of that order is through an expedited
writ procedure initiated immediately after the hearing. (§
366.26, subd. (l)(1)(A) & (l)(2); In re Cathina W. (1998) 68
Cal.App.4th 716, 719-720 (Cathina W.) [“direct appellate
consideration of the propriety of the setting order may be had
only by petition for extraordinary writ review of the order”].) To
be sure, and as Arturo argues, this rule does not apply where the
juvenile court does not discharge its statutory duty to inform
parents about this expedited writ procedure. (Cathina W., at p.
722; In re Serenity S. (2020) 55 Cal.App.5th 355, 370; see §
366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.590(b)(1), (2).)
But the trial court here discharged its duty.
The necessary advisal to a parent may be sent by “first-
class mail” “[i]f the party is not present” when the permanency
planning hearing is set. (Cal. Rules of Court, rule 5.590(b)(2).)
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Here, the court records indicate that the court clerk sent Arturo,
by first-class mail, “the Notice of Entry of the above minute order
of September 3, 2019 and form(s).” Because the minute order
contained the necessary advisal regarding the writ procedure and
the only relevant “forms” are the forms pertinent to that
procedure, we may reasonably infer that the court clerk properly
discharged its official duty in the absence of evidence to the
contrary—and here, Arturo offers none. (Evid. Code, § 664 [“It is
presumed that official duty has been regularly performed.”];
Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125 [section 664’s
“presumption applies to the duties of clerks of court”]; People v.
Jackson (1996) 13 Cal.4th 1164, 1213 [same].)
Because Arturo received proper notice of the expedited writ
procedure but did not avail himself of it, he is not permitted to
revisit those issues in this appeal from the order terminating his
parental rights. (Cathina W., supra, 68 Cal.App.4th at pp. 719-
720.)
II. Ineffective Assistance of Counsel
Even if we ignore the procedural bar, Arturo had nearly
two years of time while still before the juvenile court to challenge
any defects with the order terminating reunification services and
setting the matter for a permanency planning hearing. At any
point during that time, Arturo could have filed a petition under
section 388 to have the court reinstate reunification services or
place Cassidy into his custody. But he never did. Thus, he
ostensibly waived his right to do so. (See, e.g., In re Gilberto M.
(1992) 6 Cal.App.4th 1194, 1198 [parent’s failure to raise issues
before juvenile court despite opportunities to do so constitutes a
waiver].) Arturo responds that a finding that his inaction
constitutes a waiver of his right to challenge the September 2019
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order would violate due process because (1) Arturo, individually,
had no reason to know he had a basis to object, and (2) Arturo’s
attorney was constitutionally ineffective for not filing a section
388 petition raising these issues.
We reject Arturo’s first argument because he was
personally aware of the facts underlying all of the defects he
complains about now. Arturo continued to participate in the
juvenile dependency proceedings for nearly two years after the
September 2019 hearing. Arturo knew the September 2019
hearing happened, he (obviously) knew he was not present at it,
and he had access to all the various reports. Thus, he was aware
of the factual basis for the objections he now raises, and his
failure to take action is properly considered.
We also reject Arturo’s second argument that his counsel
was ineffective for not filing a section 388 petition.
A parent in a dependency proceeding has a right to the
effective assistance of counsel. (§ 317.5; In re Kristin H. (1996) 46
Cal.App.4th 1635, 1659, 1662.) An attorney provides ineffective
assistance only when (1) the attorney’s “performance fell below
the standard of reasonableness,” and (2) “there is a reasonable
probability that the result would have been more favorable if [the
attorney] had provided adequate representation.” (In re Merrick
V. (2004) 122 Cal.App.4th 235, 254-255; People v. Sanchez (2019)
38 Cal.App.5th 907, 915 (Sanchez).) An attorney is not
ineffective if he decides to “forgo a meritless” motion. (Sanchez,
at p. 915.) However, because the question before us is not
whether the section 388 motion would have been granted as the
world existed whenever that motion might have been made
between September 2019 and August 2021—but rather whether a
such a motion might necessitate a hearing given the “child’s
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current status” and in light of the “entire factual and procedural
history of the case”—whether a section 388 motion is meritless is
to be examined by asking whether Arturo has made a “prima
facie showing of prejudicial ineffective assistance.” (In re Eileen
A. (2000) 84 Cal.App.4th 1248, 1259-1260, overruled in part by
Zeth S., supra, 31 Cal.4th 396; In re O.S. (2002) 102 Cal.App.4th
1402, 1409 [same]; In re Justice P. (2004) 123 Cal.App.4th 181,
189 (Justice P.).) Because we must evaluate ineffectiveness in
light of the entire record, we reject Arturo’s argument that he
need not show prejudice at all because we are confined to the
record back in September 2019 (and that record did not contain
the facts Arturo now offers). Arturo has not made out a prima
facie showing that a section 388 motion to reinstate reunification
services (thereby postponing a permanency planning hearing) or
to place Cassidy back into his custody would have warranted a
hearing. A juvenile court may convene a hearing on a section 388
motion only if the moving parent establishes a prima facie
showing of (1) the existence of “new evidence” or a “change of
circumstance,” and (2) that altering the court’s previous order is
in the best interest of the child. (§ 388, subd. (a); In re Stephanie
M. (1994) 7 Cal.4th 295, 316-317.)
Even if we assume that the defective notice before the
September 2019 hearing or any of the other procedural defects
Arturo identifies constitute “new evidence” (e.g., Justice P.,
supra, 123 Cal.App.4th at p. 189), Arturo has not made a prima
facie showing that altering the September 2019 order—by
ordering additional reunification services or allowing Cassidy to
be in Arturo’s custody—would be in her “best interest” given
Cassidy’s current status. At this point in time, Cassidy has been
in her maternal grandparent’s sole custody for well over three
12
years, has only seen Arturo “sporadically” during that time
period, and has never expressed a desire to reside with Arturo
(and instead sees him as a “friend”). Transferring Cassidy to
Arturo’s custody at this time—when she is “safe” and “thriving”
with the maternal grandparents—so she can for the first time
develop a parental relationship with someone she has not lived
with and has barely seen over the last several years is not in her
best interest. Neither is giving Arturo more time for
reunification, because Arturo appears to have made no effort to
take any of the steps he was previously ordered to take; giving
him more time to complete what he did not in two years even
bother to start is not in Cassidy’s best interests. These factors
are relevant when assessing a child’s best interest. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 [factors relevant
to the child’s best interest under section 388 are (1) the
seriousness of the problem that lead to dependency, (2) the
strength of the child’s bond with her new caretakers compared
with the strength of the child’s bond with the parent, and (3) the
degree to which the problem leading to the dependency may be
easily removed or ameliorated, and the degree to which it
actually has been].)
Because Arturo cannot make a prima facie case for relief
under section 388, any section 388 motion would have been
summarily denied and his counsel’s failure to make such a
motion does not constitute ineffective assistance of counsel.
III. Direct Challenge to September 2019 Order
Even if we were to ignore the procedural bar as well as the
waiver effected by Arturo’s inaction—and to treat this appeal as a
direct appeal of the juvenile court’s order terminating
reunification services and declining to place Cassidy back in
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Arturo’s custody—Arturo still would not prevail. Arturo is
nonoffending and, by the time of the September 2019 hearing,
noncustodial. As to a presumed parent like Arturo, a juvenile
court may not terminate his parental rights without finding, by
clear and convincing evidence, that awarding him custody of
Cassidy would be ‘“detrimental”’ to her. (In re D.H. (2017) 14
Cal.App.5th 719, 730.) This is admittedly a ‘“fairly high”’ bar.
(Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 505.)
Even so, awarding Arturo custody of Cassidy—even looking at
the record only up to September 2019—would have cleared this
high bar of detriment. By that point in time, she had been out of
Arturo’s custody nearly 18 months, he was only sporadically
visiting her, his housing was unstable, and she was safe and
doing well in her maternal grandparents’ custody. These are all
relevant factors (In re T.G. (2013) 215 Cal.App.4th 1, 21-22), and
establish that the juvenile court’s ruling was supported by
substantial evidence and not otherwise an abuse of discretion.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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