Dependency Case Law

In re O.S. (Oct. 23, 2002) 102 Cal.app.4th 1402 [126 Cal.Rptr.2d 571] Court of Appeal, Fourth District, Division 1.

The juvenile court terminated the alleged father’s parental rights to the child under Welfare and Institutions Code section 366.26. The San Diego County Health and Human Services Agency (the agency) removed the child after birth from the custody of his mother and filed a section 300 petition on his behalf because the mother’s mental illness rendered her unable to care for the child. The whereabouts of the alleged father were unknown at the time. The juvenile court later scheduled a section 366.26 hearing and ordered the agency to continue searching for the alleged father. The alleged father, who was in the county jail for a probation violation, asked a social worker to locate the mother and the child. The alleged father was later contacted and advised of the section 366.26 hearing five days before his release. The juvenile court then appointed an attorney to represent the alleged father. The attorney did not return the alleged father’s phone calls, did not seek to have him named as a presumed father, and did not make sure that the agency and the court performed their respective duties. Accordingly, the alleged father appealed the juvenile court’s decision terminating his parental rights to the child, arguing that he was denied due process because he did not receive timely notice of the detention, jurisdiction, and disposition hearings. The alleged father also petitioned for a writ of habeas corpus, contending that he received ineffective assistance of counsel because his counsel did not object to the lack of notice or establish his status as a presumed father.

The Court of Appeal concluded that the alleged father received ineffective assistance of counsel and thereby granted the relief requested in the writ of habeas corpus petition and dismissed the appeal as moot. The appellate court stated that the alleged father had a constitutional right to counsel since the issue was the termination of his parental rights. The appellate court asserted that the alleged father could proceed with his writ petition because the counsel’s inaction left him in the status of an alleged father as opposed to that of a “presumed” or “biological” father; the latter two categories would have provided the father with more rights in a dependency proceeding, such as the right to custody, reunification services, and visitation. The appellate court also noted that to establish counsel was ineffective, the alleged father had to demonstrate that (1) counsel did not act in a manner expected of reasonably competent attorneys, and (2) the error was prejudicial. Using this test, the appellate court reasoned that the alleged father’s counsel was ineffective because she did not take any steps to establish paternal status in a timely manner, she never communicated with the alleged father, she did not attend the section 366.26 hearing and another attorney specially appeared on her behalf, and she did not seek blood tests to establish whether the alleged father was the child’s biological father. The appellate court asserted that a reasonably prudent attorney would have done all of these things. These inactions by counsel prejudiced the alleged father because otherwise the court may have allowed the alleged father to establish himself as a biological or presumed father and receive services. Therefore, the appellate court held that the alleged father received ineffective assistance of counsel and dismissed the issues in the appeal as moot.