Filed 8/12/15 In re H.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re H.H. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT

OF PUBLIC SOCIAL SERVICES, E062634

Plaintiff and Respondent, (Super.Ct.No. INJ1100399)

v. OPINION

S.H.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Lawrence P. Best,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Grace Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie

Koones Jarvi, Deputy County Counsel, for Plaintiff and Respondent.

1 I

INTRODUCTION1

S.H., father, appeals from the termination of his parental rights on October 29,

2014. (§§ 395, subd. (a)(1), and 366.26.) Mother is not a party to the appeal.

On appeal, father argues he received ineffective assistance of counsel (IAC)

because his appointed lawyer did not subpoena his medical records or interview his

psychologist.2 Respondent DPSS3 argues the appeal should be dismissed as untimely and

that father’s counsel was not ineffective. Notwithstanding the timeliness of father’s

appeal, we hold there was no IAC. We affirm the orders of the juvenile court.

II

APPEAL’S TIMELINESS

Respondent is incorrect about the notice of appeal being too late. The juvenile

court’s orders were made on Wednesday, October 29, 2014. The 60th day for filing a

notice of appeal was Sunday, December 28, 2014. If the last day to file a notice of appeal

falls on a legal holiday (including Saturdays, Sundays, and other days the courts are closed

for business), the deadline is extended to the next day that is not a holiday. (Code Civ.

Proc., §§ 12, 12a, 12b; Cal. Rules of Court, rule 8.60(a); see Shufelt v. Hall (2008) 163

1 All statutory references are to the Welfare and Institutions Code.

2 Because father uses the terms interchangeably in his appellate brief, it is not clear whether father means the court-ordered psychologist or a psychiatrist whom father consulted separately.

3 Department of Public Social Services, County of Riverside.

2 Cal.App.4th 1020, 1022, fn. 2; In re William C. (1977) 70 Cal.App.3d 570, 573, fn. 1;

Taliaferro v. Davis (1963) 217 Cal.App.2d 215, 216.) Father timely filed his notice of

appeal on Monday, December 29, 2014, the first court day after the 60th day.

III

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention

In June 2011, the two older children, H.H. and K.H., were previously detained from

the parents because of unsafe and unsanitary living conditions. After the children were

declared dependents, the family received services between November 2011 and June 2013.

The third child, D.H. became a dependent soon after she was born in May 2012. The

previous dependency was terminated in June 2013. In June 2013, mother and the children

were living at a facility but they soon moved to the home of the paternal aunt.

DPSS filed an original dependency petition in July 2013, involving H.H., age five,

K.H., age four, and D.H., 14 months old. The petition alleged parents’ failure to protect

and negligence, and parental incapacity. (§ 300, subd. (b).) Specifically, the family’s

residence had no running water and contained decaying food and plastic bags of fecal

matter. Father had mental health issues, including anxiety, and a history of using

methamphetamine and marijuana. Father had drug possession convictions and had been

charged twice with child endangerment. The parents had unsuccessfully received family

services from November 2011 until June 2013.

On July 27, 2013, DPSS had responded to a referral regarding general neglect. The

police had been called regarding a dispute between parents and their landlord about

3 eviction. The house had little or no furniture, no stove, and an odor. The only food was

some canned ravioli, infant food, cookies, and apple juice for the children. The parents

said they had no running water for two years and were using plastic bags in the toilet.

Father could not provide any rental documentation but he claimed the residence was

temporary. Mother expressed anxiety and distress about the family’s living situation. The

paternal aunt was willing to have the family live with her but the parents were not

cooperative.

Father had been hospitalized and was taking 14 medications for high blood

pressure, cholesterol, diabetes, blood clotting, back and chest pains, seizures, and anxiety.

Father admitted a history of using methamphetamine and marijuana but not since 1994.

Mother also suffered from anxiety. Father was unemployed and pursuing a disability

appeal. The family was receiving public assistance.

Father’s criminal history included drug offenses in July and August 1989. He was

on probation from June 2000 until June 2003. Father was a narcotics registrant in Nevada.

DPSS recommended the children be detained and placed in foster homes and the

parents receive services and be allowed supervised visitation. At the detention hearing on

July 31, 2013, the court appointed legal counsel for the parents and ordered the children

detained in foster care.

B. Jurisdiction and Disposition

In August 2013, DPSS reported that parents had immediately regressed back to the

circumstances that caused the previous dependency which ended in June 2013. The

parents had made minimal progress on their case plans. Father “did not believe there was

4 any more to learn.” DPSS recommended the children be declared dependents and the

parents receive services.

At the hearing on September 12, 2013, the court sustained the dependency petition,

ordered the children removed, and ordered reunification services. The court ordered both

parents to have psychological evaluations.

C. Six-Month Review

DPSS reported that, in March 2014, the parents were living with father’s sister, the

paternal aunt, in a cluttered, messy house that smelled of animal urine but had working

utilities and sufficient food. The house had belonged to father’s father who had recently

died. The family income was about $680 in supplemental food benefits. The cost of

utilities was about $600 a month.

Mother was 24 years old. Father was 52 years old. Father had many health

problems: cardio metabolic syndrome, spinal bifida, high blood pressure, back pain,

sciatica, stenosis, stroke, heart attacks, and other ailments. Father was taking many

medications. In spite of multiple opportunities, father had not submitted to a psychological

evaluation between September 2013 and April 2014, a failure he blamed on his poor

health.

Although generally healthy, all three children displayed developmental delays or

psychological problems. The parents had been visiting the children regularly for 90

minutes twice a week. Both parents expressed doubts about the value of the services they

had received. In March 2014, DPSS recommended the parents receive an additional six

months of services.

5 In April 2014, DPSS filed an addendum report recommending services be

terminated for both parents. Mother and father had separated and mother was living with a

new boyfriend. The therapist treating the parents described them as argumentative,

verbally and emotionally abusive, angry, and unwilling to take responsibility. Under the

circumstances, the parents were incapable of improvement. On April 14, 2014, the court

agreed with DPSS and terminated reunification services for the parents.

D. Status Review Report—Sections 366.26 and 366.3

In August 2014, DPSS recommended the children be considered for adoption. As

of August 5, 2014, they had been placed in a prospective adoptive home. The prospective

parents are employed, have college degrees, and live in a well-maintained, three-bedroom

house. They are financially stable and have been married since 2008 with no biological

children. In October 2014, the children had successfully adapted to their new home. The

adoptive parents are willing to allow postadoption contact with the parents.

On October 29, 2014, the court conducted a Marsden4 hearing at father’s request.

Father asked for the court to appoint an attorney to replace Krista Lupica. Father

complained that Lupica had not subpoenaed witnesses and medical records. The court

denied father’s request for new counsel. The court terminated parental rights. Father

appealed.

4 People v. Marsden (1970) 2 Cal.3d 118.)

6 IV

DISCUSSION

On appeal, father contends Lupica did not subpoena his medical records or

interview his psychologist (or psychiatrist) and, had she done so, a different result was

reasonably probable. We reject father’s argument.

We evaluate IAC claims using a two-part test: “In the first step, we examine

whether trial counsel acted in a manner expected of a reasonably competent attorney acting

as a diligent advocate. If the answer is no, we move to the second step in which we

examine whether, had counsel rendered competent service, the outcome of the proceeding

would have been more favorable to the client. (See, e.g., In re Emilye A. (1992) 9

Cal.App.4th 1695, 1705, 1711.)” (In re Ana C. (2012) 204 Cal.App.4th 1317, 1329-1330;

In re Athena P. (2002) 103 Cal.App.4th 617, 628; In re Z.N. (2009) 181 Cal.App.4th 282,

293.) Reversal is only appropriate where there is no “rational tactical purpose” for a

lawyer’s conduct (People v. Frye (1998) 18 Cal.4th 894, 980) and if the record clearly

shows inadequate representation or irreconcilable conflict. (Z.N., at p. 294.)

The juvenile court properly inquired about the reasons for father’s dissatisfaction.

Father stated there were character witnesses and medical records that Lupica did not obtain

by subpoena. Father asserted he could not afford to get copies of his extensive medical

records to show how sick he was. He also mentioned he had consulted a psychologist or

psychiatrist on his own.

Lupica explained the parents had testified at several hearings and father had

provided handwritten notes but not medical records as she had requested from him. Father

7 also never completed the court-ordered psychological evaluation although he was given

many opportunities. Lupica had received a phone call from father’s psychiatrist but when

she told him DPSS would not pay him, she heard nothing more from him. The court ruled

that Lupica had represented father “competently and professionally,” and denied his

Marsden request. Lupica told father she could file a section 388 petition but she needed

the psychological evaluation to do so.

Based on the foregoing, we conclude father did not demonstrate his lawyer did not

act as a reasonably competent attorney based on an objective standard. (In re Ana C.,

supra, 204 Cal.App.4th at p. 1330.) According to the record, father wanted the medical

records to show he had been too sick to complete his case plan in the past. At this stage of

the proceedings, however—after reunification services had already been terminated—

father needed to demonstrate that he was complying with his plan, notably that he had

completed a psychological evaluation and that changed circumstances would support a

section 388 petition. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; In re S.J. (2008)

167 Cal.App.4th 953, 959; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Even now on

appeal, father does not contend that he has ever completed the court-ordered evaluation.

Apparently the psychiatrist father consulted did not perform an evaluation because he

would not be paid.

Furthermore, father has not shown a more favorable result was reasonably probable.

The court’s decision to terminate reunification services in April 2014 was based on the

parents’ inability to progress in a myriad of ways. Father’s poor health was a minor factor

8 in his lack of compliance. A major issue was his failure to complete the psychological

evaluation.

Finally, the best interests of the children compel a custody determination assuring

them stability and continuity in the prospective adoptive home where they have lived since

August 2014. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The children have adapted

well. They have shown improvement and have become attached to the prospective

parents. After more than four years of dependency proceedings, it is in the children’s best

interests to reject father’s appeal and secure them a safe and permanent home.

V

DISPOSITION

Father did not receive ineffective assistance of counsel. We affirm the orders of the

juvenile court.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

KING

Acting P. J.

MILLER

J.

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