Supplemental brief sample on propriety of habeas petition issue filed at court=s request:
1. A Petition for Habeas Corpus Is Generally Recognized As the Appropriate Vehicle for Raising Ineffective Assistance of Counsel Claims.
A claim of ineffective assistance of counsel in a dependency matter is generally cognizable in the Court of Appeal on a petition for writ of habeas corpus. (In re Kristin H.(1996) 46 Cal.App.4th 1635, 1658 1659, 1667.) In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn 1 citing In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253; People v. Pope (1979) 23 Cal.3d 412, 426.)
A habeas corpus proceeding is the proper vehicle to raise the issue of ineffective assistance of counsel where the factual basis for the claim rests in pertinent part on evidence not contained in the record on appeal. (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136; In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1101.) In habeas corpus, trial counsel is afforded the opportunity to explain trial strategy. (People v. Pope, supra, 23 Cal.3d at p. 426.) Recently, the Fourth Appellate District held that to bring a claim of ineffective assistance of counsel in a challenge to an order terminating parental rights, the parent in that case needed to introduce documentation outside the record, which he could only do through a writ petition. In such circumstances, a writ petition was appropriate. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406, fn. 2.)
Although habeas corpus cannot serve as a second appeal, denial of the right to counsel is a claim which has always been cognizable in habeas corpus whether or not it was raised on appeal. (In re Hochberg (1970) 2 Cal.3d 870, 875.) By contrast, although a claim of ineffective assistance of counsel is usually raised by way of a writ of habeas corpus, it may be effectively raised as part of an appeal, at least, Awhere the appellate record demonstrates >there simply could be no satisfactory explanation= for trial counsel=s action or inaction.@ (In re S. D. (2002) 99 Cal.App.4th 1068, 1077 citing People v. Pope, supra, 23 Cal.3d 412, 426.)
A parent in a dependency proceeding has a right to effective assistance of counsel and a right to seek review of claims of incompetence. [Citation.] If counsel was ineffective in connection with the termination order in ways that are not apparent on the record, review by direct appeal is inadequate. (In re Carrie M. (2001) 90 Cal.App.4th 530, 535.)
When, as here, petitioner in a habeas corpus action requests consolidation of a writ proceeding with a pending appeal, the proper procedure is to grant consolidation and issue an order to show cause. (People v. Frierson (1979) 25 Cal.3d 142, 158.)
In this case, petitioner=s ineffective assistance of counsel claim rests on facts not part of the record on appeal. The declarations from petitioner and appellate counsel establish that trial counsel was incompetent because he failed to advise petitioner of the sibling relationship exception to adoptability; failed to advocate its application at the section 366.26 hearing (Petition, pp. 55-60); and further because he represented petitioner at S=s section 366.26 hearing without having any contact with her, without making any attempt to locate her and without knowing her position and issues to argue on her behalf (Petition, pp. 49-53).
Therefore, petitioner=s challenge, based on facts outside the record, is appropriately brought in a habeas petition.
2. The Ruling of Meranda P. Does Not Apply to This Case and is Unsound.
In Meranda P., the Fifth Appellate District barred a mother from raising the incompetency of her trial counsel by collaterally attacking, in a petition for writ of habeas corpus, the order terminating her parental rights and the orders antecedent to the termination order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1146.) The bar against the habeas petition in Meranda P. must be seen in the context of that case. The mother did not appeal any of the appealable orders antecedent to the termination of parental rights order, yet claimed that the entire dependency proceeding was defective from its inception because she was deprived of her statutory and constitutional right to counsel at the hearings leading up to the termination of parental rights hearing. (Id., at p. 1150.) The mother=s appeal challenged the Apropriety of the orders regarding Meranda made at each of the hearing which preceded the [section 366].26 hearing@ (Id., at p. 1151), based on denial of representation prior to the 18-month review hearing and incompetent representation at the 18-month review hearing, but not at the section 366.26 hearing. The mother claimed there were several valid arguments an appointed counsel could have made at the hearings where the mother was unrepresented and that her appointed counsel was incompetent at the 18-month review hearing because he did not question the sufficiency of the reunification services she received. (Id. at p. 1151.) The mother did not challenge the competency of trial counsel at the section 366.26 hearing where counsel urged the court to select guardianship over adoption as the permanent plan, based on the mother=s recent efforts to rehabilitate herself. (Id., at p. 1149.)
Therefore, any statement in Meranda P., that a parent cannot use a habeas petition to challenge ineffective assistance of counsel at a section 366.26 hearing, is dictum and not controlling authority. (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297 [A[s]uch dictum, while not controlling authority, carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic@].) Meranda P. does not control in this case where petitioner is challenging the incompetency of her new trial counsel only at the section 366.26 hearings, and not before when she was represented by another trial counsel. (See In re Eileen A., supra, 84 Cal.App.4th at p. 1258 [mother did not waive her ineffective assistance claim when no real chance to raise the claim earlier].).
In any event, the holding of Meranda P. is unsound.
Meranda P. relied on the Supreme Court=s 1988 holding in Adoption of Alexander S., that a Ahabeas corpus may not be used to collaterally attack a nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.@ (In re Meranda P., supra, 56 Cal.App.4th at p. 1161 quoting Adoption of Alexander S. (1988) 44 Cal.3d 857 867-868.) However, the holding of Alexander S. was expressly limited to its narrow facts, particularly the Anumerous procedural errors@ peculiar to that case. (Adoption of Alexander S., supra, 44 Cal.3d at p. 865.) The mother did not timely appeal the judgment denying her petition to withdraw consent to a private adoption and did not request habeas relief in her briefs. The Court of Appeal, on its own initiative and without notice to the parties, treated the birth mother=s belated appeal as a petition for writ of habeas corpus and denied the request of the prospective adoptive parents to file a return to the writ. (Adoption of Alexander S., supra, 44 Cal.3d at p. 865.) Alexander S. is Aclearly distinguishable@ because the present case involves no Acreative use of habeas corpus@ as did the court in Alexander S. (In re Eileen A., supra , 84 Cal.App.4th at p. 1256, fn. 7.)
Contrary to Meranda P, which stated that the Alexander S. opinion Aarticulated an unqualified >bright line= rule prohibiting the use of habeas to challenge final, nonmodifiable adoption-related orders@ (In re Meranda P, , 56 Cal.App. at p. 1165), the Supreme Court in Alexander S. held that its Alimited holding will not prevent the future application of habeas corpus in adoption cases under slightly different circumstances.@ (Adoption of Alexander S., supra, 44 Cal.3d at p. 867.) Therefore, the Meranda P. court improperly extended the narrow holding of Alexander S. to a broad set of circumstances.
Meranda P. held that Alexander S. applied because an order terminating parental rights is Aadoption-related.@ (In re Meranda P., supra, 56 Cal.App.4th at p. 1146.) However, a section 366.26 hearing is not necessarily an Aadoption-related action.@ While one of the permanent plans the court may order at the section 366.26 hearing is adoption,1 even in a case where the juvenile court ordered adoption as the permanent plan, the Court of Appeal may find that the child is not adoptable and remand the case to the juvenile court, in which case the matter no longer is an Aadoption-related action.@ (See In re Jesse W. (2001) 93 Cal.App.4th 349, 362 [First Appellate District held that habeas petition would be proper to challenge an order from a section 366.26 hearing establishing guardianship as the permanent plan].)
While a habeas cannot serve as substitute for an appeal (Adoption of Alexander S., supra, 44 Cal.3d at p. 865), the Second Appellate District disapproved Meranda P. in holding that Aa parent is entitled to raise a claim of ineffective assistance of counsel in connection with a parental rights termination order by habeas corpus petition filed concurrently with an appeal from the termination order.@ (In re Carrie M., supra, 90 Cal.App.4th 534, emphasis added.) The Court of Appeal has both original and appellate jurisdiction. The appellate jurisdiction vested in the Court of Appeal encompasses review by extraordinary writ as well as by direct appeal. (Id., at pp. 534-535 [dicta of Meranda P., that section 366.26, subd.(I)2 precluding habeas corpus relief, is unpersuasive]; Cal. Const., art. VI, secs.10 11.) AWhen a court has jurisdiction to hear a matter, it has jurisdiction to completely dispose of the matter and adopt any suitable mode of proceeding. [Citation.] . . . [A] parental rights termination order may be reversed on appeal or vacated by writ of habeas corpus.@ (Id., at p. 535; see also In re Jesse W., supra, 93 Cal.App.4th at p. 362 [First Appellate District relies on Carrie M., in holding that an appropriate habeas corpus petition for relief from ineffective assistance of counsel at section 366.26 hearing would have to be filed concurrently with an appeal from the effected order, or otherwise before the order became final].)
Moreover, in Alexander S., the order was final because the time for appeal had expired and no timely appeal had been filed. (In re Carrie M., supra, 90 Cal.App.4th at p. 533 relying on Adoption of Alexander S., supra, 44 Cal.3d at p. 859. at p. 859).) In this case, petitioner filed a concurrent appeal of the termination order, therefore, the following rationale expressed in Carrie M. applies equally to the case at bar.
Under the circumstances of this case, permitting review of a termination order by habeas corpus is also consistent with the interests of finality and delay reduction in child dependency proceedings. (Adoption of Alexander S., supra, 44 Cal.3d at pp. 866, 868.) Because the termination order is on appeal and not yet final, habeas corpus review will not delay finality of the termination order. The habeas corpus petition may be decided during the pendency of the appeal. Because the ineffective assistance of counsel claim relates only to the termination order, review of antecedent final orders is not required. (In re Carrie M., supra, 90 Cal.App.4th at p. 535.)
Therefore, this case is distinguishable from Meranda P. because petitioner=s challenge is only to the section 366.26 hearing and not antecedent orders. In addition, the Meranda P. holding is unsound and should not be followed because it broadly expanded the narrow holding of Alexander S.
3. This Court Should Follow those Appellate Districts Which Have Not Adhered to Meranda P.
As can be seen from the above discussion, in allowing a habeas petition filed concurrently with an appeal from a section 366.26 hearing (In re Carrie M., supra, 90 Cal.App.4th 534; see also In re Jesse W., supra, 93 Cal.App.4th at p. 362), appellate courts are finding Acracks@ in the holding of Meranda P. (In re Eileen A., supra, 84 Cal.App.4th at p. 1257 [Meranda P. still leaves the door open a crack for ineffective assistance challenges in statutorily provided for appeals from orders terminating parental rights at the section 366.26 hearing].)
In addition, in a recent case challenging an order terminating parental rights, the Fourth Appellate District granted relief requested in the writ petition and dismissed the appeal as moot.3 (In re O.S., supra, 102 Cal.App.4th 1402, 1405, 1406, fn. 2.) The O.S. court distinguished Meranda P., citing the general rule that Aan ineffective assistance of counsel claim should be raised by a writ petition.@ (In re O.S., supra, 102 Cal.App.4th at p. 1406, fn. 2.) Meranda P. held a writ of habeas corpus Ais per se barred . . . in part because the parent there had multiple opportunities to challenge counsel=s actions. (Ibid.; Meranda P., supra, 56 Cal.App.4th at p 1158 [mother Asquandered four different opportunities to complain@ to the appellate court about ineffective representation].) As in O.S., petitioner here had no such opportunities because her ineffective assistance of counsel claim arose from the section 366.26 hearing and there was no prior opportunity for her to appeal. While a judgment in a proceeding under section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as an order after judgment (Sec. 395), and while in proceedings under section 300, the parent has the right to appeal from any judgment, order, or decree specified in section 395 (Cal. Rules of Court, rule 1435(b)), in this case, Ano appealable events occurred between the time@ (In re O.S., supra, 102 Cal.App.4th at p. 1406, fn. 2) petitioner=s new trial counsel, XX, was appointed to represent petitioner, and the section 366.26 hearing where he failed to provide her with effective representation.
Therefore, one big crack in the Meranda P. ruling for the instant case is that petitioner is not claiming that her former trial counsel provided her with ineffective assistance and is therefore not asking this Court to review orders antecedent to the order terminating her parental rights.
Therefore, petitioner respectfully requests that this Court not follow Meranda P., and its rule barring habeas petitions for ineffective assistance of counsel claims arising out of the section 366.26 hearings where the petitioner is not challenging the competency of her trial counsel in hearings antecedent to the section 366.26 hearing.
4. Due Process Requires This Court to Consider Petitioner=s Habeas Petition.
Regarding appeals, at least, the Awaiver rule@ [an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order (In re Meranda P., supra, 56 Cal.App.4th 1143, 1151)] is the general rule, but not the universal rule. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190.) One crack left open in the Meranda P. opinion was the due process exception to the waiver rule. The Acrux of Meranda P.@ is that Athe waiver rule will be enforced unless due process forbids it.@ (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) Under the guidelines offered in Janee J. to overcome the waiver rule with Acase-specific flexibility@ (In re Janee J., supra, 74 Cal.App.4th at p. 208), there must first be Asome defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole;@ the defect Amust go beyond mere errors that might have been held reversible had they been properly and timely reviewed;@ and, claims of ineffective assistance of counsel must also raise reversible error. (Id., at pp. 208-209.) These due process principles should apply equally to filing a habeas petition concurrently with an appeal from an order terminating parental rights, if this Court finds a habeas petition challenging competency of counsel at a section 366.26 hearing is generally not allowed.
Recently, the Fourth Appellate District relied on the principles of Janee J. in holding that the waiver rule did not apply in an appeal from an order terminating parental rights where the mother raised an ineffective assistance of counsel claim relating to counsel=s inaction at the jurisdictional hearing. (In re S. D., supra, 99 Cal.App.4th 1068, 1079.) While the S.D. opinion arose in the context of an appeal from the termination of parental rights hearing, the incompetency of the trial counsel in that case are similar enough to this case to warrant consideration in the context of a habeas petition.
The S.D. court held that trial counsel=s failure to object to the jurisdictional allegation was and Aentirely legal, and quite fundamental@ error. (Id. at p. 1080.) The mother=s counsel Asimply misunderstood the statute and neglected to assert her right to control [the child=s] placement, and thus to defeat jurisdiction.@ (Ibid.)
As pointed out in In re Eileen A., supra, 84 Cal.App.4th at p. 1258, the parent is hardly in a position to recognize, and independently protest, her attorney=s failure to properly analyze the applicable law. If we had some reasonable expectation that parents could do so, we would not need to hire attorneys for them at all. (In re S. D., supra, 99 Cal.App.4th at p. 1080.)
As in S.D., counsel here Ahad one job.@ (In re S. D., supra, 99 Cal.App.4th at p. 1080.) Whereas in S.D., counsel=s job was to Adefeat jurisdiction,@ in this case it was to raise all arguable issues that would avoid termination of parental rights. Instead, trial counsel completely failed to investigate the facts of the case and raise the sibling relationship exception to the juvenile court, which would have precluded an adoption finding. Also as in S.D., the law and the evidence are both on petitioner=s side (Petition, p. 36-44); A[c]ounsel=s failure under the circumstances essentially denied@ petitioner the right to assert the sibling relationship exception to adoption and preserve her parental rights; and, there was Anot even a hint@ in the record that petitioner was ever put on notice that the sibling relationship exception was available to her or that she Ahad any reason to know of her counsel=s error.@ (Id. at pp. 1080-1081; Petition, pp. 55-60.)
Whereas in S.D., the Court of Appeal could not infer that trial counsel had explained the law correctly to his client and had no basis upon which to impute knowledge of the problem to the client (In re S. D., supra, 99 Cal.App.4th at p. 1081), in this case, the declarations attached to the habeas petition confirm that trial counsel did not explain the sibling relationship exception to adoption at all to petitioner. (Petition, pp. 55-60.) And further, as in S.D., A[i]t also appears that none of the other participants recognized the problem at any point in the trial court proceedings.@ (Ibid.)
Therefore, if this Court interprets and follows Meranda P. to mean that a parent cannot challenge the competency of trial counsel at the section 366.26 hearing through a habeas petition, then the same due process principles stated in Meranda P., and elaborated on in Janee J., should serve as an exception and allow petitioner=s habeas petition.
Petitioner Ais entitled to seek review of the termination order by petition for writ of habeas corpus on the ground of ineffective assistance of counsel in connection with the termination order. This court has jurisdiction to hear the habeas corpus petition. The termination order is pending on appeal and not yet final. The claim of ineffective assistance of counsel does not relate to antecedent final orders, but relates only to the termination order.@ (In re Carrie M., supra, 90 Cal.App.4th at p. 536.)
Petitioner has before this Court in her appeal an argument that trial counsel failed to competently represent her at the section 366.26 hearing because counsel failed to argue the sibling relationship exception to adoption pursuant to section 366.26, subdivision (c)(1)(E). (Appellant=s Opening Brief, pp. 45-46.) Without the habeas petition, this Court will not have before it information about trial counsel=s Atrial strategy@ (People v. Pope, supra, 23 Cal.3d at p. 426), or lack thereof as it turns out, in that trial counsel failed to advise petitioner of the sibling relationship exception to adoptability; failed to advocate its application at the section 366.26 hearings (Petition, pp. 55-60); and further because counsel represented petitioner at J=s section 366.26 hearing without having any contact with petitioner, without making any attempt to locate her and without knowing her position and issues to argue on her behalf (Petition, pp. 49-53).
Therefore, this Court should consider petitioner=s habeas petition where petitioner is challenging the incompetency of her trial counsel only at the section 366.26 hearings and where she has filed a concurrent appeal.
[See In re Darlice C. (2003) 105 Cal.App.4th 459 for additional argument.]
1 At the section 366.26 hearing, the juvenile court must make one of four possible alternative permanent plans for a dependent child. The court may terminate parental rights and order adoption; identify adoption as the permanent placement goal without terminating parental rights; order guardianship without terminating parental rights; or order that the child be placed in long-term foster care subject to periodic review of the juvenile court without terminating parental rights. (Sec. 366.26, subd. (b)(1)-(4).) A fifth option for difficult to place children allows the court to identify adoption as the permanent plan without terminating parental rights. (Sec. 366.26, subd. (c)(3).)
2 Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the court shall have no power to set aside, change, or modify it, but nothing in this section shall be construed to limit the right to appeal the order. (Sec. 366.26, subd.(i).)
3 In In re O.S., it appears that the petition was filed concurrently with the writ. (In re O.S., infra, 102 Cal.App.4th at p. 1405.)