In re Jackson W.

184 Cal.App.4th 247

108 Cal.Rptr.3d 509

In re JACKSON W. et al., Persons Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.D.W., Defendant and Appellant.

No. D055622.

Court of Appeal, Fourth District, Division 1, California.

April 29, 2010.

Review Denied July 14, 2010.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Minors.

McCONNELL, P.J.

D.W., mother of dependent children Jackson W. and Trenton W. (together, the minors), appeals a juvenile court order summarily denying her Welfare and Institutions Code ¹ section 388 petition for modification by which she sought a hearing on whether she received the effective assistance of counsel at an earlier stage of the proceedings. This appeal raises several issues of first impression: (1) whether a parent who waives the right to have the juvenile court appoint counsel trained in juvenile dependency law in order to retain counsel who does not meet those qualifications can claim privately retained counsel provided ineffective representation; and (2) whether a section 388 petition is the proper mechanism by which to raise a claim of ineffective assistance of counsel. We hold a parent, after proper advisement, may knowingly, intelligently and voluntarily waive the statutory right to be represented by appointed counsel meeting the definition of "competent counsel" under California Rules of Court ², rule 5.660(d). Once that right is waived, the parent is precluded from complaining about counsel's lack of juvenile dependency qualifications. We further hold that a parent who has a due process right to competent counsel can seek to change a prior court order on the ground of ineffective assistance of counsel by filing a section 388 petition, although the customary and better practice is to file a petition for writ of habeas corpus in the juvenile court.

Even assuming D.W. did not waive her right to raise the issue of her retained counsel's incompetence, and even assuming she properly alleged ineffective assistance of counsel in a section 388 petition, we conclude she has not met her burden of showing she was entitled to an evidentiary hearing on the petition or that she was prejudiced by counsel's claimed deficiencies. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2008 the minors were removed from the custody of their parents, D.W. and Matthew W. (together, the parents), when two-month-old Trenton was discovered to have multiple injuries, including a fractured femur and several fractured ribs in various stages of healing. Trenton also had an injury to his mouth and a bruise under his eye which the parents could not explain. When D.W. discovered Trentonhad a swollen leg, she took him to the emergency room, but then left because it was too crowded, and waited until the next day to call the doctor. The parents' explanation that the femur fracture resulted from a fall from their bed several days earlier was inconsistent with medical findings. When Jackson was a newborn, he was taken to the hospital with bruises on the sides of his face. Matthew claimed this occurred when Jackson's head got stuck between the crib railings.

The attending physician noted Trenton would have been in tremendous pain at the time of the femur fracture, and he would have cried every time he had his diaper changed or was bathed. Matthew said he could have caused the rib fractures by holding Trenton too tight, and he could have caused the femur fracture by twisting Trenton's leg to turn him face up. The parents did not understand the severity of Trenton's injuries, and D.W. insisted Matthew had not caused the injuries.

The San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court alleging Trenton had suffered severe physical abuse inflicted nonaccidentally (§ 300, subd. (e)), and one-year-old Jackson was at substantial risk of harm as a result of the abuse inflicted on Trenton. (§ 300, subd. (j).) The court made prima facie findings on the petitions and detained the minors in out-of-home care.

In a report prepared for the jurisdiction and disposition hearings, Agency recommended the court deny the parents reunification services under section 361.5, subdivision (b)(5). Even after Trenton's injuries were called to D.W.'s attention and Matthew admitted causing them, D.W. claimed Trenton had a "bone condition" or the babysitter was responsible for the injuries. However, the medical reports ruled out a bone condition and concluded the injuries were caused by nonaccidental trauma. Based on Trenton's visible injuries, the inconsistent story D.W. gave for them and her delay in obtaining treatment, the social worker believed D.W. was fully aware of the abuse that was occurring, allowed it to happen and chose to protect Matthew rather than her children.

The social worker believed reunification services for D.W. would not be in the minors' best interests because services would not likely prevent reabuse. D.W. had not protected the minors, and she lacked protective skillsdespite completing a parenting class and actively engaging in therapy. She refused to admit Matthew abused the minors.

In July 2008 the parents appeared in court with their appointed counsel and the matter was set for trial. A month later, D.W. informed the court she wanted to hire her own attorney. The court advised D.W. of the importance of hiring an attorney because of the possibility she would not receive reunification services. County counsel commented that D.W. should be aware that her counsel of choice needed to be specialized or approved in child dependency law, and "she would have to waive that specialty if she's going to retain anybody that does not regularly practice in this field."

D.W. was enrolled in therapy and making some progress. She was now "opening her eyes" to the possibility Matthew had caused Trenton's injuries, but was still "really torn." D.W. acknowledged something had happened to Trenton, but she was not sure how he was injured.

On September 2, 2008, D.W. appeared in court with her retained counsel, Randall Dierlam. The following exchange occurred:

"The Court: All right. Thank you. Is that correct, ma'am, that is as to the mother, you wish Mr. Dierlam to be your attorney?

"The Mother: Yes, sir.

"The Court: Mr. Dierlam, are you a certified specialist in juvenile dependency law?

"Mr. Dierlam: No, I'm not.

"The Court: All right. And your attorney, Mr. Dierlam, has indicated, or the attorney you would like to have represent you has indicated that he is not such a specialist. Do you understand that?

"The Mother: Yes.

"The Court: Is it still your desire to have Mr. Dierlam represent you in this proceeding?

"The Mother: Yes."

The court designated Dierlam as D.W.'s counsel.

D.W. told the social worker she now believed Matthew accidentally injured Trenton by causing him to hit his eye and lip on the crib. D.W. said she no longer lived with Matthew, she had filed for divorce and she was furious withhim. However, the social worker's observation of the parents led her to believe they intended to continue their relationship.

A psychological evaluation of D.W. showed she was not protective of her children. She had a tendency to lie, and it was not likely the minors could be safely returned to her custody within the limited time frame for reunification.

At a contested jurisdiction hearing, social worker Beatriz Luna testified that Matthew had admitted causing Trenton's femur and rib fractures. D.W. saw the bruise under Trenton's eye and his "busted lip," but claimed she did not know Matthew inflicted those injuries. The minors would be unsafe with D.W. because she persisted in her belief that Matthew did not cause Trenton's injuries.

Child abuse specialist Dr. Cynthia Kuelbs testified Trenton had a series of injuries resulting from inflicted trauma. His rib fractures occurred a few weeks before his femur fracture. A two-month-old infant could not have scooted from the center of the bed to the edge, as described by the parents. The femur fracture was likely caused by twisting the child's leg violently and with a great deal of force. The rib fractures would have been caused by compression, not by carrying the child as described by Matthew. Trenton would have been in obvious pain and discomfort from his injuries. Trenton's lip injury was likely caused by forcing an object into his mouth. It was unusual that the parents did not seek medical treatment for their seven-week-old child's bleeding mouth.

The court sustained the allegations of the petitions by clear and convincing evidence. As to D.W., the court found she knew or reasonably should have known Trenton was being physically abused.

Before disposition, the Cherokee Nation of Oklahoma successfully sought to intervene in the case on behalf of the minors, who were Indian children within the meaning of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.).

At the contested disposition hearing, the court admitted D.W.'s psychological evaluation into evidence. D.W. testified she had no idea how Trenton could have sustained broken ribs. She explained that she placed him on the bed, turned her back and then found him face down on the floor. Trenton was not crying and did not appear to be hurt. The next day, D.W. did not notice any swelling or bruising as a result of Trenton's fall. Trenton previously had a tiny bruise on his cheek and a bruised lip, and D.W. believed these injuries wereadequately explained by Matthew having bumped Trenton's head on the crib. After two days, the facial bruise disappeared and Trenton's lip appeared to be fine.

D.W. further testified that on the day Trenton sustained the...