In re Ernesto R.

An attorney in a dependency case has no obligation to file a futile Welfare and Institutions Code section 388 petition to modify an existing order. The decision not to do so is not a “failure” within the meaning of ineffective assistance of counsel jurisprudence. Use of the word “failure” carries the connotation of deficiency or negligence, i.e., not doing something that should have been done.

Jasmin R. appeals from an order terminating her parental rights to her son, one-year-old Ernesto R., after reunification services were bypassed due to appellant’s long-term substance abuse. Appellant claims that she was denied effective assistance of counsel because her trial attorney “failed” to file a section 388 petition to modify an order bypassing reunification services. Given appellant’s dismal history of parenting two older children, who were removed from her custody and care, the filing of such a petition “would have been a classic exercise in futility.” (People v. Eckstrom (1974) 43 Cal.App.3d 996, 1003 [ 118 Cal.Rptr. 391 ].) We affirm.

Facts & Procedural History

Santa Barbara County Child Welfare Services (CWS) filed a dependency petition for failure to protect…