Appellants James K. (father) and S.C. (mother) appealed from the juvenile court's orders terminating their parental rights (Welf. & Inst. Code, § 366.26)
Appellants filed letters but failed to set forth a good cause showing that any arguable issue of reversible error arose from the section 366.26 hearing. (Phoenix, supra, 47 Cal.4th at p. 844.) Consequently, we dismiss their appeal.
In October 2016, newborn James and mother tested positive for methamphetamine. James was born premature, experienced withdrawal, respiratory distress, exposure to syphilis and kidney failure and required transfusions. At the time, mother was also involved in dependency proceedings related to her seven-year-old daughter and two-year-old son, also initiated because of her drug use. The juvenile court denied her reunification services as to them under section 361.5, subdivision (b)(13)
Father was in county jail at the time of James's birth. Although he and mother had been in a yearlong relationship, mother was married to Juan C., making him James's presumed father. Paternity testing established father's biological paternity.
The Fresno County Department of Social Services (department) took James into protective custody and filed a juvenile dependency petition on his behalf, alleging he was at substantial risk of harm within the meaning of section 300, subdivisions (b)(1) and (j) because of mother's ongoing methamphetamine use, resistance to court-ordered substance abuse treatment and drug-related neglect of James's siblings.
In mid-November 2016, the juvenile court ordered James detained pursuant to the petition. Father appeared in custody at the detention hearing and requested visitation. The court granted the department discretion to assess him for visits. Father and mother signed the "Parental Notification of Indian Status" (ICWA
Father bailed himself out of jail in late November 2016 and was out of custody until the following February. While out of custody, he had four or five one-hour long visits with James during which he held, changed and fed him.
On March 21, 2017, the juvenile court conducted a contested dispositional hearing. The department recommended the court deny the parents reunification services; mother under section 361.5, subdivision (b)(13) and father under section 361.5, subdivision (a) because it would not benefit James. Father testified he hoped to be placed in the Jericho Project, a yearlong inpatient substance abuse treatment program. Social worker Laura Ruiz testified it was not in James's best interests to offer father reunification services, given James's young age, father's 20-year criminal history and the lack of a parent-child relationship.
The juvenile court denied the parents reunification services as recommended and ordered reasonable supervised visitation for them. The court found the ICWA did not apply and set a section 366.26 hearing for July 18, 2017.
Father filed a timely notice of intent to file a writ petition and writ proceedings were initiated in this court under our case No. F075387 (J.K. v. Super. Ct. (April 28, 2017, F075387) [nonpub. opinion]). However, the case was dismissed after father failed to file an extraordinary writ petition. Mother did not file a notice of intent.
In June 2017, father filed a modification petition under section 388, asking the juvenile court to order family reunification services for him, including visitation, and to place James under legal guardianship with Shelley S., a family friend. The court scheduled a hearing on father's section 388 petition on the date set for the section 366.26 hearing.
The department filed its report for the section 366.26 hearing, recommending the juvenile court terminate parental rights and free James for adoption with his prospective adoptive parents. James was considered adoptable in that he was physically healthy and had been in his prospective adoptive home since March 1, 2017. James had had little contact with his parents. Mother visited him twice in November 2016 while he was in the hospital but allowed a full six months to pass without visiting him or even asking to visit. On June 21, 2017, she requested a visit and one was arranged for July 14. Father had two in-custody visits with James in May and June 2017. However, the visits were very brief because James became agitated.
On July 18, 2017, the parents appeared with counsel for the section 366.26 hearing; father was in custody. The department's recommendation was to terminate parental rights. Mother's attorney asked for a contested hearing, asserting "the bond between the mother and the child" as the legal challenge and "constant[]" visitation as the offer of proof. Referencing the department's report, the court pointed out that mother had not visited since James's removal in November 2016. Mother's attorney told the court mother visited James the day before and the social worker cancelled her prior visits. The social worker who was present in the courtroom stated mother had not been consistent in her visits. The court found the offer of proof insufficient to warrant a contested hearing.
Father's attorney also requested a contested hearing to argue the beneficial relationship exception to adoption. He acknowledged that father spent less than 10 hours with James but father believed that James recognized him as a parental figure and was bonded to him. Father expected to be released in approximately seven months and asked the court not to terminate his parental rights but to appoint family friend Shelley as the legal guardian. Shelley had known father for approximately eight years. She had not spent any time with James, as she was not allowed visitation.
The juvenile court denied the parents' requests for a contested hearing and father's section 388 petition. The court found James was likely to be adopted and terminated parental rights.
Mother contends trial counsel was ineffective at the section 366.26 hearing because she was unprepared. Specifically, she claims her attorney was caught offguard when she asked for a contested hearing and the juvenile court asked her to specify the legal challenge. Mother's attorney responded, "Well, I guess, it would be the bond between the mother and the child." The attorney's response, according to mother, demonstrated her lack of preparation. Mother further contends her attorney's statement, "She's been visiting constantly," referring to mother and in response to the court's request for an offer of proof, demonstrated her attorney was unfamiliar with the consistency and quality of her visits with James. Finally, mother contends her attorney failed to mention her participation in services when asked by the juvenile court if she had "anything else" to add. Mother also adds that she was recently informed that she and James have Cherokee Indian heritage and she would like the tribe to be involved in any future decisions concerning James.
Father contends Ruiz's testimony at the dispositional hearing concerning James's best interests was unfounded and led to the termination of his parental rights. He claims he attempted to file a writ petition but his attorney would not complete it for him. He claims he was not able to appeal the denial of his section 388 petition. He restates his desire to place James with Shelley and informs this court that he expects to be released from custody in 2018. Meanwhile, he is participating in services while in prison.
As a general principle, an appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "`"For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him."'" (People v. Green (1979) 95 Cal.App.3d 991, 1001.) Thus, it is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
As an appellate court, we are limited to reviewing the juvenile court's orders based on the record before it at the time those orders were made. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) The proper vehicle to bring new developments to the juvenile court's attention is a modification petition under section 388.
At a section 366.26 hearing, the juvenile court's focus is on whether it is likely the child will be adopted and, if so, order termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the juvenile court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B).
We begin with father's issues, the first being the impact of Ruiz's testimony at the dispositional hearing. One of the decisions the juvenile court must make at the dispositional hearing is whether to offer reunification services. In the case of a biological father, the court's decision is guided by section 361.5, subdivision (a), which states that the court may order services for the child if the court determines that services will benefit the child. Ruiz testified she did not believe services would benefit James because James was young and needed a permanent home, he was not bonded to father and father had an extensive criminal history. Such evidence was sufficient to support the court's denial of services under the statute.
Nevertheless, father contends he was unable to assert his parental right, despite his best efforts. He states, "I've never denied my son. I've fought for him since the day I found out his mother was pregnant." He believes that, with the assistance of his friends and family, he can one day raise James. The problem, however, is that father is not a "parent" entitled to receive reunification services under section 361.5. Instead, only a presumed father is a "parent" under the statute. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) In this case, Juan was James's presumed father, a status father failed to attain.
Father further contends his trial counsel was ineffective for not helping him complete and file an extraordinary writ petition. He claims he wrote her three letters, asking for help and sent her an incomplete extraordinary writ petition, hoping she would complete it. Instead, she returned it to him, stating it was incomplete. We first note there is no evidence in the record of father's correspondence with trial counsel but even so, trial counsel is not required to file a writ petition if trial counsel believes a petition has no arguable merit. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583-584.) Here, the primary ruling concerning father was the denial of reunification services, which we have already stated was supported by substantial evidence. Consequently, trial counsel had no obligation to assist father in the completion of his writ petition. Further, father's failure on his own to challenge the court's order by writ petition operates as a forfeiture, preventing him from raising it on this appeal.
Finally, father complains he was not able to challenge the denial of his section 388 petition. He asserts, "The trial court ordered a section 366.26 hearing March 21, 2017, long before it gave permission to me on June 6, 2017 to file a section 388 petition." Father is mistaken. He had an opportunity on this appeal to challenge the court's ruling on his petition because the court denied it on July 18, 2017, the same date it terminated his parental rights. Further, to the extent father argues the court should have granted his request to have James placed with Shelley, he failed to show a new placement was required (i.e., changed circumstances) or that placing him with Shelley served James's best interests.
We turn to mother's contention her trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, a parent must establish "counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law" and the "claimed error was prejudicial." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Here, mother's only option for averting a termination of her parental rights was to prove the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)), the only one applicable, applied. This exception applies if termination of parental rights would be detrimental to the child because a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A parent asserting this exception must show he or she "occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) Thus, in order to show trial counsel was ineffective, mother would have to show that it is reasonably probable that the juvenile court would have found the beneficial parent-child relationship exception applied had it not been for counsel's failure to act competently on mother's behalf.
Mother would be hardpressed to show the beneficial parent-child relationship exception to adoption applied in her case, given the fact she visited with James less than 10 hours in the nine months following his removal from her care. Thus, her claim trial counsel was ineffective fails.
On a final note, the parents offer evidence that is not contained in the appellate record, such as father's expected date of release, the services in which they are participating and mother's newfound discovery that she has Indian ancestry. Because it is not in the record, we cannot review it. Such evidence must be presented in the first instance to the juvenile court.
We conclude the parents failed to raise any arguable issues on appeal from the orders terminating their parental rights pursuant to section 366.26 and dismiss their appeal.
The appeal by father James K. and mother S.C. is dismissed.
