C F C C - Dependency Case Law

Dependency Case Law

In re Athena P. (Nov. 7, 2002) 103 Cal.App.4th 617 [127 Cal.Rptr.2d 46]. Court of Appeal, Fourth District, Division 2.

The juvenile court terminated the mother’s parental rights under Welfare and Institutions Code section 366.26 and found the child adoptable. Upon the mother’s arrest and incarceration for methamphetamine manufacturing, her six children were adjudged dependents and placed with their maternal grandparents. When the mother was arrested, she was pregnant with a seventh child who had a different father from than her other six children. He was also incarcerated. After giving birth to the child in prison, the mother sent the child to live with the maternal grandparents. She attempted to create a formal custody arrangement by signing certain unspecified documents—possibly a temporary legal guardianship—but the documents were never filed. Because the child’s siblings were dependents and there were no court-issued documents authorizing the child’s placement, the Department of Public Social Services (department) filed a dependency petition alleging failure to protect (§ 300(b)), failure to provide for support (§ 300(g)), and abuse of a sibling (§ 300(j)). A contested jurisdictional hearing was held, and the juvenile court sustained the allegations of the petition. At the contested dispositional hearing, the juvenile court formally removed the child from her mother’s custody and denied reunification services after finding that they would be detrimental. Because the mother did not attend the dispositional hearing, the clerk required her to mail a notice of the requirement to file a petition for extraordinary writ review. However, the clerk failed to do so.

Before the scheduled section 366.26 hearing, the grandparents reported that they wanted to adopt the child. At the contested section 366.26 hearing, the juvenile court found that the child was adoptable, determined that termination of parental rights would not be detrimental, and terminated parental rights. On appeal, the mother contended that the dependency had petition failed to state a cause of action, or alternatively, that the juvenile court’s jurisdictional finding was not supported by substantial evidence. Essentially, she argued that she did not fail to support the child within the meaning of section 300(g) because she provided for the child’s support by leaving her with the grandparents. She also contended that her attorney’s failure to challenge the petition on this ground constituted ineffective assistance of counsel. The department argued that, as a preliminary matter, the mother could not challenge the jurisdictional findings in an appeal from an order terminating parental rights.

The Court of Appeal, in this partially published opinion, concluded that the mother could still raise her contentions regarding the jurisdictional allegations of the petition in her appeal from the order terminating parental rights. The appellate court further held that if the petition failed to state a cause of action, the error was harmless at this point and there was substantial evidence to support jurisdiction.

Regarding the issue of appealability, the appellate court held that the mother had not waived her right to challenge the jurisdictional findings, notwithstanding her failure to file a writ petition, because the juvenile court had failed to advise her of the writ petition requirement when it scheduled the section 366.26 hearing. The dispositional order was not appealable because the juvenile court denied reunification services and set a section 366.26 hearing in addition to removing the child from the mother’s custody at the dispositional hearing. Thus, this order could be reviewed only through a writ petition. While failure to take a writ from a non-appealable dispositional order usually waives any challenge to it, there is an exception if the juvenile court fails to advise a parent of the writ petition requirement. Therefore, since the juvenile court set a section 366.26 hearing without advising the mother of this requirement, the appellate court concluded that the first appealable order was the order terminating parental rights and that the mother could challenge the jurisdictional order in this appeal.

There is a split of authority over whether a parent can raise the issue that the dependency petition failed to state a cause of action. One case has held that an inadequate petition requires reversal, regardless of the sufficiency of the evidence at the jurisdictional hearing. (In re Alysha S. (1996) 51 Cal.App.4th 393, 396-400.) A later case, however, held that the adequacy of the petition is irrelevant if the jurisdictional findings are supported by substantial evidence, unless the parent is claiming that the petition failed to provide adequate notice of the factual allegations against him or her. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036-38.) The appellate court agreed with the latter interpretation and concluded that there was reasonable, credible and solid evidence to support the juvenile court’s conclusion that it had jurisdiction under section 300(g).

Section 300(g) applies when “[t]he child has been left without any provision for support; … the child’s parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child … .” The mother argued that, despite her incarceration, she was not unable to care for the child because she provided for the child’s support by leaving her with the grandparents. She relied on the holding of In re S.D. (2002) 99 Cal.App.4th 1068 in which the appellate court found that a section 300(g) allegation was unsupported where, upon being arrested, a mother asked her sisters to care for her child and both sisters expressed a willingness to take the child in the wake of her incarceration. In that case, the appellate court noted that the mother’s incarceration was not enough to prove that she was unable to arrange care for the child and concluded that evidence demonstrated that she was, in fact, in a position to do so. In the instant case, the appellate court distinguished In re S.D. on the basis that the mother failed to give the grandparents legal custody of the child, and concluded that the failure to provide such authority supported the juvenile court’s finding that the mother was unable to arrange for the child’s care. Since the appellate court concluded that the juvenile court’s finding that it had jurisdiction under section 300(g) was supported by substantial evidence, there was no reason to determine whether there was also substantial evidence to support its alternative jurisdictional findings under subdivisions (b) and (j).

Last, the appellate court addressed the mother’s contention that her appointed counsel rendered ineffective assistance by failing to challenge the sufficiency of the petition. In order to demonstrate that counsel was inadequate, the mother first needed to show that counsel’s representation fell below an objective standard of reasonableness. Second, there must be a showing of prejudice—a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The appellate court concluded that since the juvenile court’s finding that it had jurisdiction under subdivision (g) was supported by substantial evidence, a reasonable attorney could have decided not to contest jurisdiction. Moreover, the appellate court found that the attorney’s decision not to contest jurisdiction did not prejudice the mother because the juvenile court would have still found jurisdiction on the same ground. Therefore, the appellate court held that the mother’s attorney did not render ineffective assistance of counsel by failing to contest jurisdiction.