Steven H. v. Superior Court CA1/3 ( 2023 )

Filed 12/7/23 Steven H. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
STEVEN H.,
Petitioner,
v.
THE SUPERIOR COURT OF THE A168556
CITY AND COUNTY OF SAN
FRANCISCO, (City & County of San Francisco
Super. Ct. No. JD203291)
Respondent;
SAN FRANCISCO HUMAN
SERVICES AGENCY,
Real Party in Interest.
Steven H. (Father) petitions under rule 8.452 of the California Rules of
Court1 to vacate the juvenile court’s order setting a hearing under
section 366.26 of the Welfare and Institutions Code2 to select a permanent
plan for his son (Minor). Father contends he suffered from ineffective
assistance of counsel because his attorney failed to assure that the court
treated him as a noncustodial parent, and that the court failed to conduct a
1 All further rule references are to the California Rules of Court.
2 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
1
proper jurisdiction and disposition hearing on the supplemental dependency
petition. We issued an order to show cause. For the reasons discussed below,
we now deny Father’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2020, the San Francisco Human Services Agency (Agency)
removed Minor from the care of his mother, A.S. (Mother), with whom he
resided. The initial dependency petition alleged Mother was at risk of
transience, was using methamphetamines, and was unable to provide for
Minor, who was then three years old. The petition alleged Father had not
made himself available as a parent, had not established paternity, and had
not provided care or support for Minor when Mother was unable.
Prior to the jurisdiction hearing, the Agency made contact with Father,
who resides in Texas. Father appeared remotely at an initial jurisdiction
hearing in December 2020, during which the juvenile court appointed him
counsel who did not object to Minor’s detention.
The Agency’s jurisdiction and disposition report indicated Father had
visited Minor once on his first birthday but had no other visits since, and
Minor did not know him. Father reported a conviction for possession of
methamphetamine in 2010, but claimed no law enforcement contacts since.
The Agency reported Minor was very attached to his older sister,3 who lived
with Minor in the same foster home, and both the resource parents and
Minor’s sister reported it would be devastating to separate them. In an
addendum report, the Agency recommended reunification services for Mother
and Father. The Agency noted it needed time to assess Father’s parenting
capacity as he had never parented a child, and also time to assess his living
3 Minor’s older sister has a different father, and she also was removed
from Mother. This writ petition concerns only Minor and Father.
2
situation and employment. The Agency’s case plan objectives for Father were
for him to demonstrate the willingness and ability to have custody of Minor
by maintaining regular contact with him; engaging in progressive visitation
with Minor so Minor could eventually transition to Father’s care;
maintaining a safe and stable home environment; and developing and using a
support network to care for Minor if Father is unable to personally to do so.
At a combined jurisdiction and disposition hearing, the juvenile court
elevated Father’s status from biological to presumed father. Father and
Mother submitted to the allegations in an amended petition, which alleged in
part that Father had not been part of Minor’s life, and so failed to protect the
child from Mother’s abuse and neglect, but that he was now ready and willing
to care for Minor. Father and Mother also submitted to the Agency’s
recommended disposition, i.e., committing Minor to the care and custody of
the Agency with reunification services to the parents. The court found the
allegations in the amended petition true, found return to parental custody
would be detrimental to Minor, and declared Minor a dependent and
committed him to the Agency’s custody. The court ordered supervised
visitation for Father and directed that one or more visits be in person and
paid for by the Agency given Father’s residence in Texas.
The Agency filed a report preceding the six-month status review
hearing, indicating Father visited with Minor in person in April and May but
not in June, and participated in weekly virtual visits. The Agency indicated
Father had the support of his parents in South Carolina, and a sister in
Texas. Minor qualified for special education services and occupational
therapy. Mother was making progress in her recovery. The Agency
recommended six more months of reunification services. In October 2021, the
parties agreed to overnight visitation for Father.
3
At the six-month review hearing in November 2021, Father did not
personally appear, but his attorney indicated Father was submitting on the
recommendation of six additional months of reunification services. The court
ordered additional reunification services after again finding Minor’s return to
his parents would create a substantial risk of detriment.
By April 2022, Minor was back in Mother’s care. The juvenile court
ordered that Mother receive family maintenance services and terminated
reunification services for Father but ordered that he receive supportive
services. Agency reports filed around this time indicated Father had visited
with Minor in person three times, with one visit taking place for
Thanksgiving 2021 in Texas. Father agreed that Minor could remain in
Mother’s care.
In October 2022, prior to the six-month review hearing, the Agency
reported Mother relapsed in her drug use and stopped engaging in services.
Meanwhile, Father’s last in-person visit with Minor was in March 2022, but
he had not responded to contact about virtual visitation and had not been
very involved with Minor after Father’s Day 2022. The Agency reported
Minor still had issues requiring occupational and speech therapy. At the six-
month family maintenance review hearing in November 2022, the Agency
indicated it was arranging an in-person visit in Texas over the holidays. The
juvenile court ordered Minor remain with Mother and continued her
maintenance services.
In December 2022, the Agency filed a supplemental dependency
petition pursuant to section 387 alleging the prior disposition had been
ineffective because Mother was again using drugs and refused to engage in
services. At a detention hearing, counsel for Father did not contest there
were grounds for removal from Mother. But Father wanted custody of Minor
4
and said he would explore that going forward. The juvenile court detained
Minor and his sibling, placing them with their maternal grandmother.
In January 2023, the Agency filed a report recommending termination
of services for the parents and setting a section 366.26 hearing. The Agency
reported the following. Father had been strongly encouraged to consistently
visit Minor but that did not occur. Father said he would call Minor three
days per week starting in December 2022, but he called only once in January
for eight minutes. Father had not prioritized maintaining a consistent
relationship with Minor—he had not seen Minor since March 2022 despite
the fact that he could visit in person once a month and the Agency would pay
for his flight and hotel, and he also did not engage in regular virtual visits.
Father claimed he changed phones and lost access to those who could help
him visit with Minor. The Agency noted Minor was still extremely attached
to his sister, with whom he lived since being reunited with Mother.
In an addendum report, the Agency noted the infrequency with which
Father attended virtual visits. The Agency also learned the maternal
grandmother called Father in October 2020, prior to Minor’s detention, told
Father about Mother’s drug use, and told him to pick-up Minor and protect
him, but Father said he was unable to do so.
In March 2023, the juvenile court noted Father’s visitation issues and
said it was disinclined to give him any more chances, but the matter had to
be continued due to outstanding discovery, so Father would get one last
chance to have meaningful visitation. The Agency indicated it was willing to
give Father one last chance with a four-to-six-week continuance. The court
continued the matter to June 2023 to allow Father an extended April visit,
and emphasized Father should engage in regular visits and phone calls with
Minor.
5
The Agency filed an addendum report in mid-June 2023 noting Father’s
continued failure to engage in calls with Minor. In May 2023, Father arrived
in San Francisco at 9:45 a.m. for an in-person visit, but he asked the social
worker to drop Minor off at his hotel at 4:00 p.m. so he could have time
without Minor. Father later took Minor to Texas for several days. When
dropping Minor back off in California, Father’s scheduled flight to Texas was
not until the evening but he indicated he had “other important things to do
prior to flying back to Texas and insisted [Minor] be picked up at 10:00 a.m.
from the airport.”
Father indicated his fiancé would be co-parenting and likely be Minor’s
primary caregiver if Father obtained custody. In the course of conducting a
background check on the fiancé, the Agency conducted an updated
background check on Father and discovered he suffered a misdemeanor
conviction for driving while impaired (DWI) in Texas. Father denied the
conviction but eventually admitted it after the Agency social worker spoke to
the paternal grandfather.
In an addendum report, the Agency again recommended setting a
section 366.26 hearing. The Agency noted the infrequency with which Father
called Minor, his failure to attend virtual visits, and his failure to arrange
any in-person visits with Minor in June or July 2023. The Department
reported Father also failed to attend important meetings related to Minor’s
school or other services.
A contested detention hearing on the supplemental petition took place
on August 1 and 16, 2023. On the first hearing date, Father was present but
Mother was not. The Agency asked the juvenile court to find the allegation in
the supplemental dependency petition true, and to proceed to a trial to
6
determine if Father’s services should be terminated and a section 366.26
hearing set. Counsel for Father requested that Minor be put in Father’s care.
The juvenile court admitted several Agency reports, sustained the
allegation in the amended petition as to both children, and for purposes of
disposition as to Mother, ordered the children removed from her care. When
the court began to set a section 366.26 hearing as to Mother, Father’s counsel
asked the court to postpone making that order until Father’s trial was
complete. The Agency agreed to that request. The court proceeded to
Father’s trial.
The Agency called protective services worker (PSW) Gerber Marquez,
who testified Minor was flourishing in his placement with his maternal
grandmother and connecting with his maternal family. Minor was not being
moved to Texas to be with Father because Father had not really developed a
relationship with Minor or shown the capacity to parent Minor alone. Father
did not regularly call or engage in visits with Minor, and his visits became
less regular and less lengthy over time. After Minor reunified with Mother in
April 2022, Father expressed concern the Agency was returning Minor to
Mother who was a “drug addict,” but Father thereafter had no contact with
the Agency for months and the Agency could not get a hold of him.
Agency protective services supervisor (PSS) Kristina Pock testified as
an expert in child safety social work as follows. For a period of approximately
31 months, the Agency offered to pay for Father’s flights and hotels in San
Francisco and arranged travel for him. The Agency wanted to encourage
Father to establish a relationship with Minor, yet Father visited Minor only
six times in person. There were long periods in which Father had no contact
with Minor or the Agency. Pock testified she had been a social worker since
2007, and this was one of the “worst cases” she has had in terms of missed
7
visits. The Agency also had concerns when Father came to visit because
Father would ask the Agency to pick Minor up early, or asked for free time,
or called Mother for help with Minor. Pock testified both the paternal
grandparents and Father’s sister expressed concern about Father’s ability to
take responsibility over Minor and stated they would not be able to provide
regular support if Father obtained custody. Pock believed it would be
detrimental to return Minor to Father now given Father’s pattern of neglect,
lack of consistency visiting, lack of a support system, and his failure to build
a relationship with Minor.
On the second hearing date, Father testified that Minor is his only
child. He has limited vacation time at work and so has difficulty visiting
Minor. He works 12-hour shifts and has limited break time and so has
difficulty calling and getting a hold of Minor through the maternal
grandmother. He also has to Uber when visiting, and paying for
transportation and food for him and Minor took a “financial toll.”
On rebuttal, PSW Marquez testified that Father’s last recorded visit
was in March 2022. Thereafter the Agency did not hear from Father until
the end of September 2022, and the Agency had no record of Father visiting
in August or September 2022, as he claimed. Marquez noted he placed
Father at hotels near BART so Father would not have to use Uber. Father
had not made any phone calls to Minor in the month of August 2023.
The parties gave closing arguments without Father present, as his
connection to the hearing dropped in the middle of the Agency’s rebuttal. The
Agency, counsel for Minor, and Mother argued Minor should not be returned
to Father. Ultimately, the juvenile court terminated Father’s reunification
services and set the matter for a section 366.26 hearing. Father filed a notice
of appeal on August 18, 2023, and a notice of intent to file a writ petition on
8
August 25, 2023. Father then filed this writ petition and requested a stay of
the pending section 366.26 hearing. We issued an order to show cause, but
we did not issue a stay. Father filed a petition and the Agency filed
opposition.
DISCUSSION
A. Timeliness
Preliminarily, we address whether Father timely filed a notice of intent
(hereafter “notice of intent”) to file a petition for an extraordinary writ.
“Ordinarily, a party seeking review of an order setting a section 366.26
hearing must file notice of intent to file a petition for extraordinary writ
review within strict timeframes set forth in . . . rule 8.450(e)(4).” (In re J.W.-
P. (2020) 54 Cal.App.5th 298, 305; § 366.26, subd. (l).) Rule 8.450(e)(4)
provides: “(A) If the party was present at the hearing when the court ordered a
hearing under . . . section 366.26, the notice of intent must be filed within 7
days after the date of the order setting the hearing. [¶] (B) If the party was
notified of the order setting the hearing only by mail, the notice of intent
must be filed within 12 days after the date the clerk mailed the notification.
[¶] (C) If the party was notified of the order setting the hearing by mail, and
the notice was mailed to an address outside California but within the United
States, the notice of intent must be filed within 17 days after the date the
clerk mailed the notification.” (Italics added.)
In this case, the juvenile court set the section 366.26 hearing at the
August 16, 2023 hearing. Father contends he was disconnected from that
hearing when the court made its ruling and set the section 366.26 hearing, so
the deadline to file a notice of intent was September 5, 2023,4 the seventeenth
4 September 4, 2023 was a judicial holiday. (Gov. Code, § 6700; Code
Civ. Proc., § 135.)
9
day after the court clerk sent a notice of intent to file a writ petition to
Father. The Agency does not contend Father was present when the court
made its order and does not object to a review of the merits of Father’s
contentions. Given the lack of dispute over Father’s absence, we conclude
Father timely filed his notice of intent.
B. Ineffective Assistance of Counsel
An indigent parent in a dependency proceeding has a right to appointed
counsel where a dependent child has been placed in out-of-home care or the
petitioning agency recommends the child be placed in out-of-home care.
(§ 317, subd. (b); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) In
addition to the statutory right to counsel, “an indigent parent may in some
cases have a due process right to counsel where the termination of parental
rights may result.” (Kristin H., at p. 1659.) “All parties who are represented
by counsel at dependency proceedings shall be entitled to competent counsel.”
(§ 317.5, subd. (a); Kristin H., at p. 1659.)
“A parent seeking to establish ineffective assistance of counsel must
show both that counsel failed to act in a manner to be expected of a
reasonably competent attorney practicing in the field of juvenile dependency
law, and that it is ‘ “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.” ’ ” (In
re M.F. (2022) 74 Cal.App.5th 86, 108–109.)
In this case, Father claims he suffered from ineffective assistance of
counsel (IAC) because he was a noncustodial parent, but his attorney allowed
the juvenile court to treat him as a custodial parent and did not ask the court
to assess Father’s request for placement at the original disposition hearing
and afterwards under section 361.2.
10
Section 361.2 provides: “If a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is a parent of the
child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300,
who desires to assume custody of the child. If that parent requests custody,
the court shall place the child with the parent unless it finds that placement
with that parent would be detrimental to the safety, protection, or physical or
emotional well-being of the child.” (§ 361.2, subd. (a), italics added.) If the
court places the child with the noncustodial parent, the court may order that
the parent become legal and physical custodian of the child and terminate
jurisdiction over the child. (§ 361.2, subd. (b)(1).)
“The term ‘custody’ . . . refers to the parent’s right to make decisions
pertaining to the child and to have legal possession of the child. [Citation.]
‘Placement’ refers to the address where the child shall live during the
dependency proceeding. [Citation.] Thus, under section 361.2,
subdivision (a), the court examines whether it would be detrimental to
temporarily place a child with the nonoffending noncustodial parent; under
subdivision (b) of section 361.2, the court decides whether that placement
should be permanent and whether the court’s jurisdiction should be
terminated.” (In re A.A. (2012) 203 Cal.App.4th 597, 605 (A.A.).)
1. Original disposition hearing
With regard to Father’s IAC claim that his attorney failed to invoke
section 361.2 at the original disposition hearing, the Agency does not present
any argument responding to the deficient performance prong of the claim.
That said, we will briefly address that point.
“It is the noncustodial parent’s request for custody that triggers
application of section 361.2, subdivision (a); where the noncustodial parent
11
makes no such request, the statute is not applicable. [Citations.] Failure to
object to noncompliance with section 361.2 in the lower court results in
forfeiture.” (A.A., supra, 203 Cal.App.4th at p. 605.) Section 361.2
contemplates immediate placement with a noncustodial parent. (§ 361.2,
subds. (a), (b); In re Zacharia D. (1993) 6 Cal.4th 435, 454 (Zacharia D.)
[“[Section 361.2] assumes the existence of a competent parent able to
immediately assume custody”].)
In this case, the transcript of the March 2021 combined jurisdiction and
disposition hearing does not show Father requested immediate custody such
that counsel was ineffective in failing to invoke section 361.2. Instead, at
that hearing, Father stipulated to the section 300, subdivision (b)(1)
allegation against him, and further stipulated to the disposition that he
would receive reunification services.
Father claims he “requested placement of [Minor] with him in Texas.”
His record citations, however, do not clearly show he communicated that
request to his attorney, or reflect what transpired between Father and
counsel leading Father to submit to the recommended disposition. Though
the Agency reports show that Father indicated he wanted to eventually
reunify and parent Minor, Father did not indicate he wanted immediate
custody of Minor, with whom he had no relationship at the time. Absent
evidence that he communicated a desire for immediate placement to counsel
at the time of the original disposition hearing, Father cannot establish that
counsel performed deficiently by not invoking section 361.2 at that hearing.
(See In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)
Even assuming Father made the requisite communication and counsel
performed deficiently by not invoking section 361.2 at the original disposition
12
hearing, it is not reasonably probable that a result more favorable to Father
would have been reached absent the claimed omission.
As discussed, section 361.2 provides that the court shall place a child
with a noncustodial parent “unless it finds that placement with that parent
would be detrimental to the safety, protection, or physical or emotional well-
being of the child.” (§ 361.2, subd. (a).) A finding of detriment pursuant to
section 361.2, subdivision (a) must be made by clear and convincing evidence.
(In re A.C. (2020) 54 Cal.App.5th 38, 43; cf. § 361, subd. (c); In re S.F. (2023)
91 Cal.App.5th 696, 720, fn. 14.)
We review a disposition order for substantial evidence. (In re T.V.
(2013) 217 Cal.App.4th 126, 136.) Under this standard, “[w]e review the
record in the light most favorable to the court’s order to determine whether
there is substantial evidence from which a reasonable trier of fact could find
clear and convincing evidence that placement would be detrimental to the
child. Clear and convincing evidence requires a high probability, such that
the evidence is so clear as to leave no substantial doubt.” (In re Patrick S.
(2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)
At the combined jurisdiction and disposition hearing here, Father
admitted the allegation under section 300, subdivision (b)(1), that he was not
a part of Minor’s life and that he failed to protect Minor from Mother’s abuse
and neglect. Father does not presently challenge the truth of this
jurisdictional allegation, and other portions of the record confirm the true
finding was warranted. For example, Agency reports show maternal family
members informed Father of Mother’s drug use and the environment Minor
was in, and Father did not act to protect Minor.
Additionally, Agency reports show that at the time of the original
disposition hearing, Minor did not know Father and the two had no
13
relationship. The Agency believed Father needed to establish a relationship
with Minor so that Minor could safely transition to living with Father. The
Agency also needed time to assess Father’s living situation, housing,
employment, and parenting ability, noting Father had reported he never
parented a child before. Minor was exhibiting developmental delays: he had
speech issues, was not potty trained, and had difficulty chewing and
swallowing. Minor lived with his sister in the same foster home, where she
had “assumed a primary caretaking role” for him. Minor was very attached
to her and looked to her for consolation. Father could not care for both Minor
and his sister, and the foster parents and Minor’s sister stated it would be
“devastating” for the two to be separated.
Father contends he was prejudiced because “the only bases for the
[A]gency’s recommendation that [Minor] not be returned to Father’s custody
at the original disposition hearing” were “that the agency had no information
about Father’s ability to parent and that he and [Minor] did not have an
established relationship.” Relying on In re Abram L. (2013) 219 Cal.App.4th
452 (Abram L.) and Patrick S., supra, 218 Cal.App.4th 1254, Father argues
“[t]he lack of a relationship between the noncustodial parent and child cannot
constitute substantial evidence of detriment.” He also relies on In re Z.K.
(2011) 201 Cal.App.4th 51 (Z.K.) for the proposition that “ ‘any lack of
information’ about the noncustodial parent cannot constitute substantial
evidence of detriment.” We are unpersuaded.
First of all, it is unclear why the bases for the Agency’s placement
recommendation at the original disposition hearing should control the
prejudice analysis. In any event, the Agency reports indicate its
recommendation was not based solely on the two identified matters. Rather,
the Agency relied on a combination of those and several other factors to
14
support its recommendation, i.e., the lack of relationship between Father and
Minor; Father’s lack of parenting experience; the Agency’s need for time to
fully assess Father’s living situation, employment, and parenting ability; and
the detriment that separation from Minor’s sister would cause. Though
Father points to a later Agency report indicating that a Texas child protective
services agency had assessed Father’s home and found it appropriate, the
cited report does not clearly reflect that the home assessment had been
completed or available at the time of the original disposition. Nor was there
any indication that an assessment of Father’s employment or parenting
ability had been completed.
None of Father’s authorities supports his claim of prejudice. Abram L.
indicates that “an alleged lack of a relationship between father and the
children is not, by itself, sufficient to support a finding of detriment for
purposes of section 361.2, subdivision (a).” (Abram L., supra, 219
Cal.App.4th at p. 464, italics added.) But Abram L. does not suggest that
lack of a relationship cannot be considered among the reasons for a detriment
finding. Indeed, other portions of Father’s writ petition appear to
acknowledge it is a permissible consideration.
In Abram L., the Court of Appeal remanded the case to the juvenile
court to make an express finding of detriment under section 361.2. (Abram
L., supra, 219 Cal.App.4th at p. 455.) But there, “Father . . . was not a
stranger to the children. Abram and Jacob had visited father every other
Saturday for many years. Moreover, an alleged lack of a relationship
between father and the children is not, by itself, sufficient to support a
finding of detriment for purposes of section 361.2, subdivision (a).” (Id. at
pp. 455, 464.) In contrast with Abram L., this case involved a three-year-old
boy to whom Father was a stranger.
15
The facts of Patrick S., supra, 218 Cal.App.4th 1254 bear no
resemblance to the facts here. Patrick S. involved a father who sought
custody of a 14-year-old, and the Court of Appeal found no substantial
evidence to support the trial court’s detriment finding. (Patrick S., at
pp. 1256, 1263–1265.) The appellate court observed, among other things,
that the father “paid child support every month for 11 years without knowing
where his son was. He searched for him for years. When he learned of his
son’s whereabouts, [the father] immediately came forward and requested
placement, attended all significant hearings in the dependency proceedings,
visited and contacted his son whenever possible, looked into obtaining
recommended services for [the child] and his family through the Navy and his
church, and participated in recommended services.” (Id. at p. 1263.) There,
the record left no doubt the father was a fit and competent parent with no
risk factors in his home. (Ibid.) By contrast, the record here indicates that
Father had not developed a relationship with his son and that he neglected to
assist or protect Minor when he knew Mother was putting Minor at risk. The
situation here presents no parallel to that in Patrick S. (See also Z.K., supra,
201 Cal.App.4th at p. 66 [finding no substantial evidence in the record to
support an implied detriment finding].)
In sum, Father has not established IAC at the original disposition
hearing.
2. After the original disposition hearing
Father contends his attorney’s incompetence in failing to invoke
section 361.2 continued at the hearing on the supplemental petition. Again,
we address the deficient performance prong of this IAC claim, though the
Agency did not.
16
In Zacharia D., supra, 6 Cal.4th 435, the California Supreme Court
examined section 361.2 and concluded: “Nothing in this statute suggests that
custody must be immediately awarded to a noncustodial parent regardless of
when in the dependency process the parent comes forward. Rather, its
language suggests that the statute is applicable only at the time the child is
first removed from the custodial parent or guardian’s home. Our
interpretation is reinforced by the absence of a similar provision requiring
return of the child to a noncustodial parent in the statutes governing the 6-,
12-, and 18-month review hearings.” (Zacharia D., at pp. 453–454, italics
added.)
“Despite the statute’s plain language and our Supreme Court’s
admonition that the statute applies only at disposition,” at least two cases
have applied section 361.2 to a noncustodial parent’s requests for custody
after the original disposition phase of the dependency proceeding. (In re
Liam L. (2015) 240 Cal.App.4th 1068, 1082, citing In re Jonathan P. (2014)
226 Cal.App.4th 1240 and In re Suhey G. (2013) 221 Cal.App.4th 732 (Suhey
G.).) Father relies on Jonathan P. and Suhey G., but they are
distinguishable. These cases involve fathers who appeared for the first time
after disposition because the child welfare department failed to provide
proper notice of the dependency proceedings. (Suhey G., at pp. 743–745;
Jonathan P., at pp. 1254–1255.) Here, Father appeared in December 2020,
prior to the original disposition hearing. Father also appeared at the
combined jurisdiction and disposition hearing, where he stipulated to the
section 300, subdivision (b)(1), allegation against him and also stipulated to
the disposition that he would receive reunification services.5
5 Suhey G. indicates the same rules of court applicable to disposition
hearings on a dependency petition filed under section 300—including a rule
contemplating section 361.2’s application at disposition hearing—govern a
17
The Agency—in conclusory fashion—concedes that section 361.2 should
apply at the hearing on the supplemental petition in this case. The Agency,
however, does not explain the basis for this concession, much less cite any
supporting authority. In any event, even assuming Father’s attorney
performed deficiently by failing to invoke section 361.2 after the original
disposition hearing, no prejudice appears.
First of all, Father acquiesced to the return of custody to Mother in
April 2022. Father told the Agency he was not trying to separate Minor and
Mother, but only seeking to prevent Minor from being in foster care.
Considering Mother regained custody in 2022 with no objection by Father,
Father is hard pressed to show he was prejudiced by a failure to invoke
section 361.2 to obtain custody up to that point in time.
Furthermore, at the August 2023 hearings on the supplemental
petition, the juvenile court considered whether Minor should be returned to
Father or whether a section 366.26 hearing should be set. Disagreeing with
Father’s contention that the Agency failed to prove detriment, the court made
a finding that the return of Minor to Father would create a substantial risk of
detriment to the safety, protection, emotional, or physical well-being of
Minor, adopting the argument of Minor’s counsel and the Agency’s counsel.
Among other things, the juvenile court observed that although Minor
loves Father, Father failed to show the ability to parent Minor. Father
missed Minor’s “IEP” meetings and his child and family team meetings
disposition hearing on a supplemental petition filed under section 387.
(Suhey G., supra, 221 Cal.App.4th at p. 741, fn. 20.) But given its later
discussion of Zacharia D. and its emphasis on the fact that the child welfare
department failed to properly serve the father with notice of the proceedings,
this footnote cannot be read as a blanket statement that section 361.2 should
apply at all disposition hearings on supplemental petitions. (Suhey G., at
pp. 743–744.) Father does not argue otherwise.
18
(CFTs), spent little time with Minor and did not seem to put Minor’s interests
before his own. Despite the Agency bending over backwards to provide in-
person visits and arrange Father’s travel, Father visited Minor in person only
six times over the roughly 31-month course of the case. During some visits,
Father sought free time for himself and did not want to be with Minor.
Moreover, despite the Agency’s accommodating Father, per PSS Pock, this
was one of the worst cases she had seen of a parent missing visits with a
child. Father’s own parents did not believe Father should parent Minor, and
the court expressed concern that Father would not be able to parent Minor
given that he works 10 to 12 hours each day. The court noted that Father
was dishonest about his DWI conviction, as were many other aspects of his
testimony.
The evidence at the August 2023 hearings substantially supports the
juvenile court’s conclusion to the degree of high probability demanded by the
clear and convincing standard. The Agency reports introduced into evidence
and the testimony of the Agency’s witnesses amply support the conclusion
that Father failed to adequately engage in visitation with Minor, did not even
regularly call or engage in virtual visits, and also bolstered concerns about
Father’s ability to parent this young child. There was evidence that Father
failed to protect Minor before the dependency case began, and then had no
contact with Minor or the Agency for months after Minor reunified with
Mother in 2022, despite expressing concern the Agency was returning Minor
to a “drug addict.” The reports also showed that Minor was extremely
attached to his sister, who was living with Minor in the home of maternal
grandmother, their resource parent, and that he was flourishing. Pock
specifically testified it would be detrimental to return Minor to Father given
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Father’s pattern of neglect and lack of consistent visitation, his lack of
support system, and his failure to build a relationship with Minor.
Given the evidence presented at the August 2023 hearings, and the
juvenile court’s stated reasons for its decision, including its credibility
determination as to Father’s testimony, it is not reasonably probable that
Father would have obtained a more favorable result had counsel invoked
section 361.2 and the court applied it.
As above, Father argues the only two bases for the Agency’s placement
recommendation at the hearing on the section 387 petition were that there
was no information about Father’s parenting ability, and he and Minor had
no substantial relationship. Again, the purported bases for the Agency’s
recommendation does not control the analysis of whether the alleged deficient
performance was prejudicial. In any event, to the extent Father claims there
was no information about his parenting ability, this is incorrect. The
evidence at the August hearings, including Father’s own testimony which the
juvenile court essentially found lacked any credibility, was sufficient to
establish rational concerns about Father’s ability to parent a young child.
Father also suggests there could be no grounds for a detriment finding
because at the time of the hearing on the supplemental petition, he had
unsupervised overnight visits with Minor. But the fact that Father was
allowed unsupervised visits does not preclude a finding of detriment under
section 361.2.
In sum, Father has not established his IAC claim.
C. The manner in which the juvenile court conducted the
hearing on the supplemental petition
Father next argues the juvenile court erred in the manner it conducted
the hearing on the supplemental petition. He argues proceedings on a
supplemental petition must be conducted like proceedings on a section 300
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original petition with a bifurcated jurisdiction and disposition phase. He
claims the court erred because it did not make a finding on the allegation in
the supplemental petition, did not make a finding that Minor’s placement
with Mother was ineffective, did not order Minor removed from Mother’s
custody or terminate the prior order returning Minor to Mother’s custody,
and did not make findings regarding placement with Father pursuant to
section 361.2. Instead, as to Father, the court made findings required for an
out of home review hearing.
This claim was forfeited. (In re Aaron B. (1996) 46 Cal.App.4th 843,
846.) Father did not object to the procedures the court followed or the
findings it made.
Though we find the claim forfeited, we note a supplemental petition is
used to secure removal of a child from the physical custody of a parent where
“the previous disposition has not been effective in the rehabilitation or
protection of the child.” (§ 387, subds. (a)–(b); Rule 5.560(c); In re John V.
(1992) 5 Cal.App.4th 1201, 1211 [a supplemental petition under section 387
need not allege new jurisdictional facts, or urge different or additional
grounds for dependency, because a basis for juvenile court jurisdiction
already exists].) Father’s claim that the court erroneously found the
allegation in the supplemental petition true without finding that the prior
disposition was ineffective is without merit. As the Agency points out, the
allegation in the supplemental petition that the court found true included the
language: “The previous disposition has not been effective in the protection or
rehabilitation of the child.” Moreover, Father fails to allege any prejudice as
to this claim and, on this record, we discern none since there was no dispute
that Mother had relapsed and stopped engaging in services and the prior
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disposition had not been effective in protecting Minor. (In re J.S. (2011) 196
Cal.App.4th 1069, 1078 (J.S.) [applying Watson standard of harmless error].)
As for Father’s claims concerning findings the court should have but
did not make, or that it mistakenly made, we have already found no
reasonable probability of a more favorable outcome had Father invoked
section 361.2 at the August 2023 hearings, and Father fails to allege any
prejudice as to the other findings he claims the court should have made, or
mistakenly made. (J.S., supra, 196 Cal.App.4th at p. 1078.)
D. Father’s motion to consolidate
Contemporaneously with his notice of intent to file a writ after the
August 2023 hearing setting the section 366.26 hearing, Father also filed a
notice of appeal. Later, he filed a motion to consolidate this writ matter with
that appeal, case no. A168544. Father filed no separate opening brief in that
appellate matter, and instead filed this writ petition under both case
numbers. The records in both cases are materially identical. As we have
reached the merits of Father’s claims in this writ proceeding, we discern no
reason to consolidate the matters and so hereby deny the motion to
consolidate. By separate order filed contemporaneously with this opinion, we
will dismiss the appeal as abandoned. (Doran v. White (1961) 196 Cal.App.2d
676, 677.)
DISPOSITION
The petition for extraordinary writ is denied on the merits. The
decision is final in this court immediately. (Rules 8.452(i) & 8.490(b)(2)(A).)
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_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
S.H. v. Sup Co. City & Co. S.F. (A168556)
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