In re D.J. CA2/2

Filed 12/17/20 In re D.J. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 D.J. et al., Persons B305214
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
18CCJP05241A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JANELLE B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Brian Mahler, Deputy County Counsel, for
Plaintiff and Respondent, Los Angeles County Department of
Children and Family Services.
******
The juvenile court terminated Janelle B.’s (mother’s)
parental rights over her twin sons, D.J. and R.J. Mother argues
that the termination orders are invalid because (1) they violate
the Indian Child Welfare Act (ICWA) (25 U.S.C., § 1901 et seq.;
Welf. & Inst. Code, § 224 et seq.),1 and (2) neither mother nor an
attorney representing mother were present at the hearing where
the termination orders were entered. Neither argument
warrants relief on appeal: There is no ICWA error under the new
amendments to ICWA, and the presence of mother and/or her
counsel would not have changed the outcome of the termination
hearing. Accordingly, we affirm the orders.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother and Alfred J. (father) have an “on-again, off-again”
relationship that has produced four children: J.J. (born August
2016), A.J. (born July 2017), and twin boys, D.J. and R.J. (born
June 2018).
Mother has struggled with drug abuse. At the time of
A.J.’s birth, both mother and A.J. tested positive for
methamphetamine. Mother tested positive for amphetamines in
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
April 2018, while six months pregnant with D.J. and R.J. In
August 2018, mother possessed what looked to be
methamphetamine. Mother nevertheless denies that she has
ever used drugs during her pregnancies and, more broadly, “does
not feel that she has a problem with drugs.”
Mother has also been violent with father. In September
2017, she struck father and cut his lip. Father obtained a
domestic violence restraining order against mother.
Notwithstanding that order, in September 2018, mother again
engaged in an altercation with father and was arrested for
violating that order.
At the time of D.J.’s and R.J.’s birth, mother was their sole
custodian.
II. Procedural Background
A. This case, involving D.J. and R.J.
1. Petitions
On August 17, 2018, the Los Angeles Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
D.J. and R.J. In the operative, First Amended Petition filed on
September 21, 2018, the Department alleges that (1) mother has
a “history of illicit drug[ use] including methamphetamine and
amphetamine,” and is a “current user of amphetamine,” all of
which place D.J. and R.J., due to their “tender age,” at “risk of
serious physical harm” (thereby warranting the exercise of
jurisdiction under subdivision (b)(1) of section 300), and (2)
mother and father have “a history [of] engaging in domestic
violence” that “places the children at risk of serious physical
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. . . harm” (thereby also warranting the exercise of jurisdiction
under subdivision (b)(1) of section 300).2
2. Jurisdiction and reunification
On October 9, 2018, after mother pled no contest to the two
allegations in the operative petition, the juvenile court exerted
dependency jurisdiction over D.J. and R.J., removed the twins
from mother’s custody, and ordered the Department to provide
mother with reunification services.
On May 2, 2019, the juvenile court held a six-month
progress hearing. By that time, mother had not completed the
drug treatment program or domestic violence program that was
part of her case plan, and had missed every single drug test
except one. On this basis, the court found that mother had made
“minimal” progress with her case plan and was thus not in
compliance with that plan, and proceeded to terminate her
reunification services. The court set a permanency planning
hearing for D.J. and R.J. for August 29, 2019.
3. Termination of mother’s parental rights over
D.J. and R.J.
On March 10, 2020, the juvenile court found D.J. and R.J.
to be adoptable, found that the beneficial parent-child exception
did not apply, and terminated mother’s parental rights over the
twins.
4. Appeal
Mother filed this timely appeal from the termination
orders.
2 Although father was named in the petition, he is not a
party to this appeal.
4
B. The parallel case, involving older siblings J.J.
and A.J.
Prior to the birth of D.J. and R.J., the juvenile court had
exerted dependency jurisdiction over J.J. and A.J. on the basis of
mother’s drug use, mother’s 2017 physical assault of father, and
father’s inability to provide J.J. and A.J. with the necessities of
life. The parents did not reunify with J.J. and A.J., and the
juvenile court terminated mother’s parental rights over J.J. and
A.J. in February 2019.
DISCUSSION
I. ICWA Violation
A. Facts pertinent to ICWA
1. Exploration of ICWA status in the parallel case
On August 2, 2017, and August 9, 2017, respectively,
mother and father filled out ICWA-020 forms and indicated that
neither parent had “Indian ancestry as far as [they] know.”
In September 2017, the Department learned that J.J. and
A.J. may qualify as “Indian children” through the maternal
grandmother or paternal grandmother. The Department
interviewed the maternal grandmother, who stated that her
mother (that is, J.J.’s and A.J.’s maternal great-grandmother)
“had American Indian [ancestry]” through an unknown tribe but
was unsure if any member of the family was enrolled in the tribe.
The Department also interviewed the paternal grandmother, who
stated that (1) her mother (that is, J.J.’s and A.J.’s paternal
great-grandmother) “ha[d] Apache” heritage, but was not enrolled
in the tribe, (2) her father (that is, J.J.’s and A.J.’s paternal great-
grandfather) had “Indian ancestry” through an unknown tribe
but was not registered with that tribe, and (3) her great-
grandmother’s mother (that is, J.J.’s and A.J.’s paternal great-
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great-great-grandmother) had “Indian ancestry” with an
unknown tribe.
The Department thereafter sent notice to all eight Apache
tribes to solicit their input as to whether J.J. and A.J. were
“Indian children” under ICWA. By March 2018, none of the
tribes had responded that J.J. and A.J. qualified as “Indian
children.”
On that basis, the juvenile court found that ICWA did not
apply to J.J. and A.J.
2. Exploration of ICWA status in this case
In late August 2018, mother filled out an ICWA-020 form
indicating that she had “no Indian ancestry as far as [she]
know[s].” During mother’s initial appearance on August 27,
2018, the juvenile court asked if “there [is] any reason to believe
that [father] has American Indian heritage,” and mother
responded that father’s “great-grandmother may have some
[American Indian] heritage.” After the Department reminded the
court of its ICWA finding regarding J.J. and A.J. and that they
had the same parents as D.J. and R.J., the court found that it
had no “reason to know that [D.J. and R.J.]” were “Indian
child[ren]” within the meaning of ICWA.
When father made his first appearance in late September
2018, he filled out an ICWA-020 form indicating that he had “no
Indian ancestry as far as [he] know[s].”
The juvenile court in this case accordingly found that
ICWA was inapplicable, and did not order the Department to
provide notice to any Indian tribes.
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3. Termination of parental rights, appeal, and
stipulated remand in the parallel case
In February 2019, the juvenile court in the parallel case
terminated mother’s parental rights over J.J. and A.J.
Mother appealed.
In September 2019, the Department and mother stipulated
to a remand to “ensur[e] ICWA compliance.” Specifically, the
parties agreed that the Department would (1) “re-interview” the
maternal and paternal grandmothers “to obtain identifying
information about the more-remote . . . extended family members
who may have Indian ancestry,” (2) “interview any . . . extended
family member who may have information about the family’s
possible Indian ancestry,” and (3) send supplemental notices,
with any additional information learned, to the Apache tribes.
(Italics added.)
B. Analysis
Mother’s primary argument is that the juvenile court’s
order terminating her parental rights over D.J. and R.J. violates
ICWA because the twins have the same parents as J.J. and A.J.
and the Department has already stipulated that the order
terminating mother’s parental rights over those children violated
ICWA (or, at a minimum, warranted a remand).3 In assessing
whether ICWA has been violated, we review any questions of law
3 Mother’s secondary argument is that the trial court erred
in not ordering the Department to speak with the paternal
grandmother after mother suggested, at her August 2018 initial
appearance, that parental grandmother may have Indian
heritage. This was not error because (1) the Department had
already interviewed paternal grandmother in the parallel case,
and (2) re-interviewing paternal grandmother was not required
by ICWA, for the reasons described in the text.
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de novo but review the court’s ICWA findings for substantial
evidence. (Dwayne P. v. Superior Court (2002) 103 Cal. App. 4th
247, 254; In re Rebecca R. (2006) 143 Cal. App. 4th 1426, 1430.)
ICWA was enacted to curtail “the separation of large
numbers of Indian children from their families and tribes
through adoption or foster care placement.” (Miss. Band of
Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32.) Under the
ICWA and California statutes our Legislature enacted to
implement it (§§ 224-224.6), as amended effective January 1,
2019, a juvenile court—and, as its delegate—the Department—
have duties all aimed at assessing whether a child involved in a
pending dependency case is an “Indian child” entitled to the
special protections of ICWA. (§§ 224.2, 224.3; Stats. 2018, ch. 833
(Assem. Bill No. 3176); In re A.M. (2020) 47 Cal. App. 5th 303, 320
[applying ICWA law in effect at time of order terminating
parental rights]; In re Isaiah W. (2016) 1 Cal. 5th 1, 15 [same].)
For these purposes, an “Indian child” is a child who (1) is “a
member of an Indian tribe,” or (2) “is eligible for membership in
an Indian tribe and is the biological child of a member of an
Indian tribe.” (25 U.S.C. § 1903(4), italics added; § 224.1, subd.
(a) [adopting federal law definition].) By its terms, this definition
turns “‘on the child’s political affiliation with a federally
recognized Indian Tribe,’” not “necessarily” “the child’s race,
ancestry or ‘blood quantum.’” (In re Austin J. (2020) 47
Cal. App. 5th 870, 882 (Austin J.), quoting 81 Fed.Reg. 38801-
38802 (June 14, 2016).)
Under ICWA as amended, the Department and juvenile
court have “three distinct duties.” (In re D.S. (2020) 46
Cal. App. 5th 1041, 1052 [noting amendment’s creation of three
duties]; Austin J., supra, 47 Cal.App.5th at pp. 883-884 [same].)
8
The first duty is the initial “duty” of the Department and the
juvenile court “to inquire whether [a] child is an Indian child.”
(§ 224.2, subds. (a) & (b).) The Department discharges this duty
chiefly by “asking” family members “whether the child is, or may
be, an Indian child.” (Id., subd. (b).) For its part, the juvenile
court is required, “[a]t the first appearance” in a dependency
case, to “ask each participant” “present” “whether the participant
knows or has reason to know that the child is an Indian child.”
(Id., subd. (c).) The second duty is the duty of the Department or
the juvenile court to “make further inquiry regarding the possible
Indian status of the child.” (§ 224.2, subd. (e).) This duty is
triggered if the Department or court “has reason to believe that
an Indian child is involved” (ibid.), and, once triggered, obligates
the Department to conduct further interviews to gather
information, to contact the Bureau of Indian Affairs and state
Department of Social Services for assistance, and/or to contact
the relevant Indian tribe(s). (Ibid.) The third duty is the duty to
notify the relevant Indian tribe(s). (§ 224.3, subd. (a); 25 U.S.C.
§ 1912, subd. (a).) This duty is triggered if the Department or the
court “knows or has reason to know . . . that an Indian child is
involved.” (§ 224.3, subd. (a).) The Department or juvenile court
has “reason to know a child involved in a proceeding is an Indian
child” in one of six statutorily defined circumstances—namely,
when (1) “[a] person having an interest in the child . . . informs
the court that the child is an Indian child” (§ 224.2, subd. (d)(1)),
(2) “[a]ny participant in the proceeding . . . informs the court that
it has discovered information indicating that the child is an
Indian child” (id., subd. (d)(3)), (3) “[t]he child . . . gives the court
reason to know that the child is an Indian child” (id., subd.
(d)(4)), (4) the child or the parents reside, or are domiciled, “on a
9
reservation or in an Alaskan native village” (id., subd. (d)(2)), (5)
“the child is or has been a ward of a tribal court” (id., subd.
(d)(5)), or (6) “either parent or the child possess an identification
card indicating membership or citizenship in an Indian tribe”
(id., subd. (d)(6)).
In her primary argument, mother is effectively arguing
that the Department and juvenile court did not properly
discharge the last of the two ICWA duties—that is, the duty to
conduct further inquiry and the duty to notify the Indian tribes.
By statute, however, those duties apply only if there is a “reason
to believe” (as to the duty of further inquiry) or a “reason to
know” (as to the duty to notify) that the children at issue are
Indian children. (§§ 224.2, subd. (e), 224.3, subd. (a).)
Substantial evidence supports a finding that there is no reason to
believe or reason to know that D.J. and R.J.—or, for that matter,
J.J. and A.J.—are Indian children. That is because the
information that the Department and the juvenile court
possessed established, at best, that the children had Indian
“ancestry” or “heritage.” That is what the maternal and paternal
grandmothers reported, and what the conditional remand in the
parallel case was designed to investigate further. But “Indian
ancestry, without more, does not provide a reason to believe”—
and thus does not provide a “reason to know”—“that a child is a
member of a tribe or is the biological child of a member.” (Austin
J., supra, 47 Cal.App.5th at pp. 888-889.) Here, there was
nothing more, as the grandmothers both confirmed that none of
their ancestors were ever members of, or otherwise enrolled in, a
federally registered tribe. That the Department for whatever
reason opted to stipulate to a remand that was not required by
10
ICWA in the parallel case does not provide us any grounds to
depart from ICWA’s mandates in this case.
II. Termination of Parental Rights at Hearing Without
Mother or Any Counsel to Represent Her
A. Pertinent facts
1. Regarding appointment of counsel
At mother’s first appearance in this case on August 27,
2018, the juvenile court appointed a lawyer to represent mother.
Approximately one month later, on September 26, 2018,
Lawren Cottles (attorney Cottles) substituted in as mother’s
appointed counsel. At first, attorney Cottles was associated with
the Law Office of Katherine Anderson. By May 2019, attorney
Cottles was associated with the Law Office of Amy Einstein.
Attorney Cottles represented mother at the jurisdictional and
dispositional hearing, at the six month progress report hearing,
at the August 2019 hearing set as the initial permanency
planning hearing, and at the January 14, 2020 hearing to which
the permanency planning hearing had been rescheduled.
Both attorney Cottles and mother attended the January 14,
2020 hearing. At that hearing, the trial court again continued
the permanency planning hearing, this time to March 10, 2020.
Then the court—not once, but twice—personally “ordered”
mother to “return” to court for that March 10, 2020 hearing.
On February 28, 2020, Diana Walch—another lawyer
associated with the Law Office of Amy Einstein—filed a motion
asking for the office to be relieved as mother’s counsel due to “an
actual conflict” that “can[not] be waived.”
The juvenile court heard the motion to be relieved on
March 5, 2020. Although the motion had been served on mother
by mail and by e-mail, mother was not present. The attorney
reaffirmed that the firm “ha[s] a conflict,” but was “unable to
11
provide the court with further information.” Based on counsel’s
representation of an unwaivable conflict, the court granted the
attorney’s motion to be relieved as counsel and appointed a
different panel attorney, a “Ms. Sweet” (attorney Sweet), to
represent mother. When attorney Sweet told the court that she
could not accept the appointment until mother was present, the
court ordered attorney Sweet to contact mother so that both
mother and attorney Sweet would be up to speed for the
previously scheduled March 10 permanency planning hearing.
Mother did not show up for the March 10, 2020
permanency planning hearing despite attorney Sweet’s efforts to
contact mother. Attorney Sweet reaffirmed that she could not
accept appointment unless mother was present. After recounting
that it had personally ordered mother to appear for the March 10
hearing, the juvenile court found that mother had been “given
proper notice” and stated that it was “ready to proceed.” The
court then found D.J. and R.J. to be adoptable, found that the
beneficial parent-child bond exception did not apply, and
terminated mother’s parental rights over D.J. and R.J.
2. Regarding the beneficial parent-child
relationship exception
D.J. and R.J. were removed from mother and placed with
Ms. E. (foster mother) on August 15, 2018, when they were six
and one-half weeks old.
Between August 2018 and March 2019, mother’s visits with
the children were “sporadic.” Between June and August 2019,
mother made “almost weekly” visits with the children at a food
court at the Ontario Mills mall. Between August 2019 and
November 2019, mother’s visits again became “sporadic.” The
visits stopped entirely in November 2019. All of mother’s visits
were monitored. During the visits, mother was “affectionate and
12
loving,” but always “appear[ed] to be overwhelmed with their
care.” The twins did not “seem to have a bond with mother.”
With foster mother, by contrast, the twins had a “loving,
consistent routine” and were “thriv[ing] and do[ing] well.” The
twins had “both attached” to foster mother and had “established”
“a normal parent-child relationship.”
Foster mother repeatedly affirmed her desire to adopt D.J.
and R.J.
In early 2020, mother reported that she had been “working
full time” and “attending school,” although she offered no
documentation in support of her reports.
B. Analysis
Mother argues that the juvenile court erred in terminating
her parental rights at a hearing where neither she nor any
attorney representing her was present. We agree with mother
that this is procedurally problematic. We note, however, that the
genesis of these procedural problems is mother: If mother had
shown up to the March 10, 2020 hearing, as the juvenile court
had personally ordered her to do, then mother’s previously
designated replacement counsel (that is, attorney Sweet) could
have accepted the court’s appointment, such that both mother
and her new lawyer either (1) would have been present for the
permanency planning hearing, or (2) could have requested a
continuance of that hearing. Even if we ignore mother’s central
role in creating the procedural morass of which she now
complains, her absence—and that of any counsel—does not
entitle to her relief from the court’s termination order.
A parent’s right to counsel at the permanency planning
stage—that is, after the juvenile court has exerted jurisdiction
and terminated any reunification services—is grounded in
13
statute, not in the federal or California Constitution. (§ 317,
subds. (b) & (d); Cal. Rules of Court, rule 5.534, subds. (c) & (d);
In re Andrew S. (1994) 27 Cal. App. 4th 541, 548-549 [holding that
there is no “constitutional right to appointed counsel” at a
“366.26,” permanency planning hearing]; cf. In re Ronald R.
(1995) 37 Cal. App. 4th 1186, 1195 (Ronald R.) [holding that there
is a due process-based right to counsel when reunification
services are terminated].) As such, the denial of counsel will not
mandate reversal on appeal unless mother “demonstrate[s] a
reasonable probability that a more favorable result ‘“would have
been reached”’” had counsel been appointed. (In re J.P. (2017) 15
Cal. App. 5th 789, 797-798 (J.P.), citations omitted; Ronald R., at
p. 1195; In re A.J. (2019) 44 Cal. App. 5th 652, 665-666 (A.J.).)
This inquiry into whether the absence of counsel was prejudicial
is to be evaluated on a “case-by-case” basis, and with special focus
on the “effect” of counsel’s absence “on the best interests of the
child[ren].” (J.P., at p. 799.)
Mother has not carried her burden of showing that it is
“reasonably probable” that, had she or a lawyer for her been
present, the result of the permanency planning hearing would
have been more favorable to mother. Mother does not dispute
that D.J. and R.J. were adoptable or that their adoptability
obligated the juvenile court to terminate her parental rights and
order adoption unless mother proved that one of the six statutory
exceptions applied. (§ 366.26, subds. (c)(1) & (c)(1)(B); In re I.W.
(2009) 180 Cal. App. 4th 1517, 1527, overruled in part on other
grounds as stated in Conservatorship of O.B. (2020) 9 Cal. 5th
989, 1010.) The only relevant exception is the beneficial parent-
child relationship.
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The beneficial parent-child relationship exception applies
when (1) “the parent[] ha[s] maintained regular visitation and
contact with the child[ren],” and (2) “the child[ren] would benefit
from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
Because “‘[i]nteraction between [a] natural parent and child[ren]
will always confer some incidental benefit to the child[ren],’” the
second element of the exception requires a parent to show that (1)
“she occupies a parental role in the child[ren]’s life, resulting in a
significant, positive, emotional attachment between child[ren]
and parent,” and (2) “the child[ren] would suffer detriment if
[their] . . . relationship with the parent were terminated.” (In re
C.F. (2011) 193 Cal. App. 4th 549, 555.) In assessing whether
termination of parental rights would be detrimental to a child,
courts look to “(1) the age of the child, (2) the portion of the child’s
life spent in the parent’s custody, (3) the positive or negative
effect of interaction between the parent and the child, and (4) the
child’s particular needs.” (In re Angel B. (2002) 97 Cal. App. 4th
454, 467.)
It is not reasonably probable that the juvenile court would
have found the beneficial parent-child relationship exception
applicable even if mother had been present at the permanency
planning hearing with a lawyer. That is because the record
unequivocally demonstrates that mother satisfied none of the
exception’s prerequisites. Mother did not “maintain[] regular
visitation and contact with” D.J. and R.J. Except for a brief, two-
or-three-month period over the summer of 2019, mother’s visits
with the twins were either “sporadic” or nonexistent. This
precludes a finding of regular visitation. (In re I.R. (2014) 226
Cal. App. 4th 201, 212 [“significant lapses in visits” preclude a
finding of “regular visit[s]”]; In re Anthony B. (2015) 239
15
Cal. App. 4th 389, 396 [“‘Sporadic visitation is insufficient to
satisfy the first prong of the parent-child relationship exception
to adoption’”].) Mother also cannot show that the twins “would
benefit from continuing the relationship” because mother never
occupied a “parental role” vis-à-vis the twins and the twins would
not suffer detriment if their relationship with mother were
terminated. The twins have lived with foster mother all but six-
plus weeks of their entire lives, and mother’s sole interaction
with them has been in monitored visits where she has appeared
to be “overwhelmed” taking care of them; at no point has mother
occupied a parental role. (In re Jasmine D. (2000) 78 Cal. App. 4th
1339, 1350 [“a parental relationship is necessary for the
[beneficial relationship] exception to apply”], italics omitted.)
The twins would also not suffer detriment if adopted by foster
mother (with whom they had “established” “a normal parent-
child relationship”) rather than placed with mother (with whom
they had no apparent bond).
Mother offers three sets of arguments in response.
First, she argues that the juvenile court’s termination of
her parental rights without her or any attorney representing her
violated due process. To be sure, a parent may have a “due
process right to counsel during [parental] termination
proceedings” “on a case-by-case basis” even when, as a general
matter, the right to counsel is otherwise grounded in statute.
(Ronald R., supra, 37 Cal.App.4th at pp. 1195-1196.) But the
existence of this case-by-case right turns on “whether the
presence of counsel would have made a ‘determinative difference’
in the outcome of the proceeding,” thereby rendering the
proceedings “fundamentally unfair.” (Id. at pp. 1196-1197; In re
Claudia S. (2005) 131 Cal. App. 4th 236, 251; In re Malcolm D.
16
(1996) 42 Cal. App. 4th 904, 921 (Malcolm D.).) Because the only
disputed issue at mother’s permanency planning hearing was the
applicability of the beneficial parent-child relationship exception
and because, as explained above, that exception was foreclosed by
the record, the presence of counsel would not have made any
difference—let alone the “determinative difference” required to
make out a violation of due process.
Second, mother contends that a different ruling on the
beneficial parent-child relationship exception was reasonably
probable had counsel been present because (1) as mother’s
counsel proffered at the January 2020 hearing, mother would
have testified that she was in school and employed, and the
juvenile court found this proffer so compelling that it ordered the
Department to investigate it, and (2) an attorney would have
aided mother in presenting witnesses4 and other documents.
Accepting the contents of mother’s proffer as true—namely, that
she was busy with school and work, and that these other
activities made it difficult to visit the children—would do nothing
to change the court’s analysis of the beneficial parent-child
relationship exception because these additional facts do not
negate the fact that mother’s visitation was sporadic or
nonexistent, that mother did not occupy a parental role, or that
mother did not have any bond as compared with foster mother’s
bond. And the court ordered the Department to investigate
further to see whether “there’s evidence to support or contradict
mother” (italics added), not because the court felt it was a close
4 We note that attorney Cottles informed the court at the
January 14, 2020 hearing that she was not requesting that any
social workers be made available for examination at the section
366.26 hearing.
17
case. While it is possible that counsel would have aided mother
generally (J.P., supra, 15 Cal.App.5th at p. 801), the fact that
“counsel”—with her legal training and acumen—“could have
made a difference” does not establish a reasonable probability
that counsel would have made a difference, particularly where
the evidence in the record precluded application of the beneficial
parent-child relationship exception. (Malcolm D., supra, 42
Cal.App.4th at p. 921.)
Lastly, mother cites four cases that she contends dictate a
ruling in her favor. They do not. Mother cites In re Dolly D.
(1995) 41 Cal. App. 4th 440 (Dolly D.), but that case involved a
juvenile court’s refusal to allow a parent’s lawyer to cross-
examine a witness on the ground that the parent had elected not
to attend the hearing (id. at pp. 443-446); here, the court
appointed counsel and was ready to allow counsel to participate
in the hearing. Dolly D. also preceded In re Celine R. (2003) 31
Cal. 4th 45, 59-60, where our Supreme Court established that the
“reasonable probability” test for prejudice applied in dependency
cases. Mother cites In re Julian L. (1998) 67 Cal. App. 4th 204,
but the juvenile court in that case waited three months before
appointing replacement counsel for a parent (id. at pp. 207-208);
here, the court immediately appointed counsel and it was
mother’s refusal to appear as ordered that precluded appointed
counsel from accepting that appointment. Mother cites J.P.,
supra, 15 Cal. App. 5th 789, but that case involved the absence of
counsel at a hearing to modify a prior order, which had been set
for hearing after the trial court had determined that that
evidence “strongly favored” the parent’s position in the motion to
modify, which rendered the absence of counsel prejudicial (id. at
pp. 800-801); here, the sole issue at the permanency planning
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hearing was the applicability of the beneficial parent-child
relationship exception, which the record all but foreclosed. And
mother cites A.J., supra, 44 Cal. App. 5th 652, but that case
involved a juvenile court that would not re-open its jurisdictional
and dispositional orders that were entered at hearings for which
father received invalid notice and was not represented (id. at pp.
655-656); here, mother had counsel throughout the proceedings
until the final permanency planning hearing, where there is no
across-the-board constitutional right to counsel.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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