In re Paul W.

• Decision Date: 23 May 2007
• Docket Number: No. H029866.,H029866.
• Citation: 151 Cal.App.4th 37,60 Cal.Rptr.3d 329
• Court: California Court of Appeals Court of Appeals
• Parties: In re PAUL W., On Habeas Corpus.

60 Cal.Rptr.3d 329

151 Cal.App.4th 37

In re PAUL W., On Habeas Corpus.

No. H029866.

Court of Appeal, Sixth District.

May 23, 2007.

Robert Navarro (Under appointment by the Court of Appeal), for Appellant.

Caroline J. Todd, Berkeley, Attorney for Respondent, Paul W. (Under appointment by the Court of Appeal), Ann Miller Ravel, County Counsel, Arleen Rozul, Deputy County Counsel, for Respondent, DFCS.

McADAMS, J.

This appeal is the latest in a series of appellate challenges to juvenile court orders made in this dependency proceeding.¹ It is brought by the mother of four dependent children.

In this appeal, the mother challenges her lack of party status in the habeas corpus proceeding below, which this court ordered to examine the father's claim of ineffective assistance of counsel at the jurisdiction and disposition phases of the underlying dependency proceeding. The father asks us to dismiss this appeal, asserting lack of standing, forfeiture, and mootness. He also defends the trial court's decision on the merits.

So far as we are aware, no authority addresses the issue of standing in this particular procedural context. Addressing the question as one of first impression, we conclude that the mother lacks standing to prosecute this appeal. We therefore grant the father's motion to dismiss on that ground.

OVERVIEW OF DEPENDENCY LAW

As an aid to understanding the procedural history of this case, we begin with a brief overview of dependency law.

I. Statutory Objectives

The Legislature has provided for juvenile court jurisdiction over dependent children. (Welf. & Inst.Code, § 300 et seq.)² The primary goal of the dependency statutes is "to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible." (In re David M. (2005) 134 Cal.App.4th 822, 824, 36 Cal.Rptr.3d 411.)

II. Juvenile Court Proceedings

In dependency proceedings, there are generally four phases: (1) detention and jurisdiction; (2) disposition; (3) the provision of services for reunification or family maintenance, accompanied by periodic review hearings; and (4) either a permanent plan for the child's placement outside of the parent's home or termination of the dependency. (See In re Matthew C. (1993) 6 Cal.4th 386, 391, 24 Cal.Rptr.2d 765, 862 P.2d 765; see generally, Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-250, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) Once the juvenile court assumes dependency jurisdiction, it has broad authority to modify orders in the best interests of a dependent child. (§§ 385, 388; see also Cal. Rules of Court, rule 5.570.)

III. Representation

Under statutory law and court rules, an indigent parent in a dependency proceeding has a right to appointed counsel where out-of-home placement is an issue. (§ 317, subd. (b); In re Kristin H. (1996) 46 Cal. App.4th 1635, 1659, 54 Cal.Rptr.2d 722.) "There is also a due process constitutional right to representation by counsel on a case-by-case basis when the result of the hearing may be termination of parental rights." (In re Arturo A. (1992) 8 Cal. App.4th 229, 238, 10 Cal.Rptr.2d 131.) All parties who are represented at dependency proceedings are entitled to competent counsel. (§ 317.5, subd. (a).) This court previously has approved the use of habeas corpus petitions in dependency proceedings to raise claims of ineffective assistance of counsel. (In re Kristin H., at pp. 1658, 1663, 54 Cal.Rptr.2d 722.)

FACTUAL AND PROCEDURAL BACKGROUND

We summarized the history of this case in a prior appeal. (H027540, unpublished opinion filed May 4, 2005.) We include relevant portions of that summary here, followed by a synopsis of subsequent events.

Family History

Four children are involved in this case: a boy and his three younger sisters.³ They were born in 1990, 1992, 1994, and 1996, respectively.

The parents, Gail W. and Paul W., married in California in 1989. They moved to Colorado in 1993. The couple separated in 1998 and subsequently divorced. Gail returned to California in 1998 with all four children, and Paul moved here the following year. Paul has remarried and has a second family, which includes his wife Amber W., her two sons by a previous marriage, and two daughters born to the couple.

At the time Gail left for California in 1998, Colorado authorities were investigating a disclosure by Middle Daughter (then three and a half years old) that her father's penis had touched her vagina. By then, Gail had also learned that Son may have been sexually abused by Paul's father, a convicted child molester.

Starting in 1999, Gail and Paul were engaged in a high-conflict custody dispute over the children. That dispute resulted in periodic orders for supervised visitation, court-ordered custody evaluations in 2000 and 2002, and a court-ordered investigation of the disputed sexual abuse allegations against Paul. That investigation began in 2003 but it was never completed because this dependency intervened.

Dependency Proceedings

In May 2003, a referral was made to Santa Clara County's Department of Family and Children's Services ("the Department"). That referral followed Middle Daughter's report of recent sexual impropriety by her brother. In September 2003, the Department received another referral, this one based on Son's violence toward Middle Daughter. Further investigation by the Department revealed that Son also was aggressive and sexually inappropriate toward his other sisters, and that Gail was not always able to stop him from harming the girls. The Department was also aware of Middle Daughter's 1998 disclosure of molestation and of the allegation that Son may have been sexually abused.

Petitions

In September 2003, the Department filed petitions alleging grounds for dependency jurisdiction as to all four children. The petitions asserted: (1) that Gail and Paul had failed to protect the children; (2) that the children were suffering or were at substantial risk of suffering serious emotional damage; (3) that the children had been sexually abused; and (4) that the children were at substantial risk of abuse or neglect because a sibling had been abused or neglected. (§ 300, subds.(b), (c), (d), (j).)

All four children were detained. Son was removed from Gail's physical custody and was placed with maternal relatives in San Diego.

Jurisdiction and Disposition

Starting in November 2003, the juvenile court conducted a combined jurisdiction and disposition hearing. All parties were represented by counsel. Sexual abuse was a central issue. Over the course of the lengthy contested hearing, the court received extensive documentary and testimonial evidence. The court announced its decision at the close of the hearing on December 9, 2003. Its formal jurisdictional and dispositional order was entered in January 2004.

The juvenile court sustained jurisdiction as to all four children. In doing so, it made three specific factual findings: that Son had engaged in sexual impropriety with Middle Daughter in May 2003; that Paul's father had unmonitored access to Son and had molested him; and that Paul had touched Middle Daughter's vagina with his penis in 1998 or before. The court sustained the allegations of each of the four petitions.

In its dispositional orders, the court declared all four siblings dependent children. With respect to the girls, Gail retained custody, subject to supervision by the Department. As to the boy, the court concluded that removal was necessary, and it continued his placement with relatives in San Diego. The court ordered services for the parents, including parenting classes, counseling, and psychological evaluations. The court also ordered supervised visitation between Paul and his children.

Paul appealed, challenging both the jurisdictional and the dispositional orders. We affirmed. (H027068, filed May 4, 2005.) We concluded that sufficient evidence supported the juvenile court's specific factual findings and its assumption of jurisdiction. We also determined that the court did not err in removing Son from parental custody and placing him with relatives out of county.

At the same time, however, we reviewed Paul's petition for a writ of habeas corpus, which challenged the jurisdictional and dispositional orders on the ground of ineffective assistance of counsel, and we issued an order to show cause, returnable in the superior court, as to that claim. (H028475, order filed May 4, 2005.) We later modified the order to show cause, to include an order for appointment of counsel. (H028475, order filed May 23, 2005.)

Post-Disposition Hearings

Following disposition, the parties returned to the juvenile court for numerous review hearings and other proceedings.

Six-Month Review: May 200b

In a report prepared for the six-month review hearing, the Department's social worker recounted Paul's failure to comply with any court-ordered services, with the exception of two visits with his son. The social worker recommended "that there be no visitation between the father and the children until the father apologizes to the children, takes responsibility for his actions towards them and submits to the Court's orders."

In May 2004, the juvenile court conducted the six-month review hearing. Paul appeared in propria persona. He disputed the earlier jurisdictional finding that he had molested his middle daughter, which prompted the court's comment that it would not "relitigate the factual issue." Paul also vehemently objected to the social worker's recommendation that visits be suspended until he apologizes and takes responsibility for the harm to his children, saying: "I can tell you when that will happen. Never. Never. Never."

By formal order filed on May 24, 2004, the court adopted the social worker's recommendations, with corrections as noted. The court thus terminated Paul's visitation with all four children, and it prohibited Paul from "physical contact or...