In re Destiny S. Cal.App. 2 Dist. October 31, 2012148 Cal.Rptr.3d 800
HARD DRUG ABUSE WITHOUT MORE
B. Use Of Marijuana And Hard Drugs
This will not be an entire review of In re Destiny S. The focus will be on one small section.
"It is undisputed that a parent's use of marijuana “without more,” does not bring a minor within the jurisdiction of the dependency court. The same is true with respect to the use of hard drugs. (In re Rocco M. (1991) [mother's cocaine use standing alone was not sufficient basis or jurisdiction under section 300 (b). Instead, the DCFS had to present evidence of a specific, non-speculative and substantial risk to Destiny of serious physical harm. (In re David M. (2005) 134 Cal.App.4th 822, 830, 36 Cal.Rptr.3d 411 [jurisdiction under section 300, subdivision (b), reversed where mother had continuing substance abuse problem, but there was no evidence of a specific, defined risk of harm from mother's substance abuse."
The main concern that many at the agency held was that hard drugs are considered that hard drugs as they tend to lead to powerful addictions with terrible outcomes. Meth and heroin are insidious in that they will have the user use amounts without any severe side effects or detriment to their parenting, but over time the substance abuse will become so severe that the parent will use enough that it will impact their daily life and pose a risk of detriment to the child's wellbeing. So if Destiny S is speculating that a mother using weed without "anything more" is the same as a mother mainlining meth without "anything more" are one in the same in the eyes of the law, the department would dissent citing that that is error as meth/heroin carry far more abuse potential. They could even go as far as to speculate that there is a reason that "weed" is legalized in many states whereas meth/heroin are still CII and CI substances.
Although the purpose of dependency is to keep children safe and in stable families, the parent's right to custody of their children is also at stake. In this case the proper steps would be to open a family maintenance case (with HOP/home of parent) and provide substance abuse counseling and maybe NA attendance if needed. The random drug testing would most likely be ordered as a part of the maintenance plan regardless if there are signs of dependence or mild impairment in functioning as the parent should always be striving to maintain their sobriety especially with hard drugs such as meth, heroin, or crack. If the parent is able to maintain their sobriety and keep up with their programs, then the department should be able to request that the case be closed without an Allen M hearing set by minor's counsel. However, if many parents are not able to commit to their sobriety or keep up with their programs, then the department would not be out of line to request that there be a 300 petition with a b count and a removal order.
It should be understood that parents may have trouble making all of their NA meetings or miss a drug test here and there as many parents may have two jobs or other commitments but the court should look at the totality of the circumstances and make a compassionate and well informed decision based on their compliance as a whole. There should not be FR bypass requested or dependency jurisdiction taken the moment the parent fails to make one meeting or drug test as that is unrealistic and unfair.
Allen M. v. Superior Court (1992)
The department does not bear the right to unilaterally close or dismiss a 300 petition as the best interest of the child is paramount.
The question raised in this case is whether the department has the right to dismiss a dependency petition over the objection of the other counsel’s objections (minor’s counsel). The appellate court concluded that the juvenile court must allow evidence to come in when weighing whether dismissal is in the interests of justice and the welfare of the minor.
Although the social worker can be the only person to file a dependency petition, they cannot unilaterally dismiss or terminate a 300 petition. Once the petition is filed and evidence comes in that demonstrates that there is risk of detriment to the child then minor’s counsel can introduce evidence into the petition that they believe the department is lacking. When the court files for a 350 (c) motion, it cannot do so unilaterally. Minor’s counsel has a right to present evidence in support of the petition before the court rules on a section 350(c) motion in re Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069.)
A 350 (c) motion refers to Welf & I C § 350 (c):
At any hearing in which the department bears the burden of proof, after the presentation of evidence on behalf of the department and the minor has been closed, the court shall order an action such as the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review.
Shortly put, a 350 (c) motion is a motion to dismiss the petition and return the minor to the home of the parent or to terminate jurisdiction. Normally, the department and minor’s counsel concur on the decision, but there are cases where this does not happen and minor’s counsel may request an Allen M hearing.
Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069 is the seminal case that established that the agency or department does not bear unilateral power to open or dismiss petitions. Once all parties become involved, minor’s counsel now has a right to introduce new evidence.
In Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, the parents had a petition pursuant to Welfare and Institutions Code § 300 (d) filed on one of the two children. The mother was granted liberal visitation and the father was denied any contact due to it being a (d) count. The department filed again a month later for a (b) count. However, when at the jurisdiction hearing, the department moved to dismiss the sexual abuse petition due to minor’s incompetence to testify and a lack of enough information to sustain the petition.
Minor’s counsel raised an objection in that it believed that the petition contained reports and interview facts that would be enough to demonstrate detriment to the child. The court took minor’s counsel’s objections into consideration and set a hearing. The court provided its reasoning for allowing minor’s counsel to set this hearing.
"[T]o out-of-hand grant the motion to dismiss the [section] 300[, subd.] (d), proceed as to the new petition, allow the parties to proceed forward with a submission or no contest on that would, in essence, be the same as ignoring what issues may have been caused to arise in the mind of [minors' counsel] and his representation of the minor[s]. I don't think that is a balanced way of looking at the case. ... [Minors counsel] will have the obligation to proceed forward.
Father filed a writ of mandate citing that minor’s counsel did not have standing in this matter as only the department bears the power to open a petition and close a petition. Minor’s counsel does not have the right to “step into the department’s shoes” and prosecute the dependency petition. Father also cites that minors' counsel has a different remedy of applying to the Department for initiation of yet another petition under section 329 should they disagree with the department’s decisions. Additionally, the department contends that it acts as "an arm of the state" and has the discretion to dismiss a petition.
Minors' counsel on the other hand, asserts that its role is to protect the minor’s interests pursuant to Welf & I C § 317 (e) and to represent the minor’s preferences. Minor’s counsel asserts that the court has the duty to determine what is in the best interest of the children and that should they apply section 329 it would not be in the best interest of the children.
The appellate court provided its opinion.
It first set forth the groundwork for minor’s counsel’s contention. According to California rules of court, rule1406 states “the social worker or probation officer shall have the sole discretion whether to file a petition under section 300 but it does not confer equal discretion to dismiss a petition as it cannot invoke and then divest the court of jurisdiction”.
Here, the court could not make a best interest determination based solely upon the Department's assessment that the evidence in support of the petitions was weak or insufficient.
However, sufficiency of the evidence is a legal question, not an abuse of discretion standard.
Because the department lacks the power to close a petition alone, it must notify all parties, minor’s counsel, parent’s counsel, and others in order to provide the opportunity to raise an objection and be heard on the matter. If a parent or minor does object, the proper vehicle would be an order to show cause hearing. This would require the department to establish why the petition should be dismissed and allow for declarations and testimony to come into the record. Although the court will be deferential to the Department's expertise, because the primary focus is in the best interest of the child other parties such as minor’s counsel can introduce evidence in support of the 300 petition.
In regards to the assertion that minor’s counsel is overstepping the appellate court opines that that is incorrect as they do not become “the prosecutor” because § 317, (e) tasks counsel with presenting evidence and representing their client. This is also not limited to making recommendations to the court concerning the minor's welfare, and when the Department has not carried its burden of proof, it “may offer evidence without first having reserved that right” before any order is made. Refusal to allow minor's counsel to present evidence would be inconsistent with their role of protecting the interests of their client, the minor.
The appellate court notes that the application procedure under section 329, would be circuitous and a waste of resources here where the Department has already made clear it will not pursue the d counts.
The appellate court concluded that judicial review of the department’s request for dismissal is critical to protect the welfare of the minor in the case that it misses critical information. It finds that the trial court properly set the matter for a contested jurisdictional hearing, denied the petition for extraordinary relief, and vacated the stay issued.
DOES FAILURE TO MAKE A TIMELY NOTICE OF APPEAL DUE TO IAC PRECLUDE APPELLANT’S RIGHT TO RELIEF FROM DEFAULT AND CAN WE APPLY IN RE A.R. (2021)11 CAL.5TH 234 TO LPS CONSERVATEES IN THE NEAR FUTURE
Back to the whole issue with the Daigle court that noted “the applicability of the doctrine of ineffective assistance of counsel to the conservatorship context is an unsettled area of the law”. In re Conservatorship of Daigle, 269 Cal. Rptr. 770 (Ct. App. 1990), I found a case where IAC claims could very realistically become an issue for LPS Conservatees due to the large case load counsel bears.
There was dependency case (In re A.R. (2021) 11 Cal.5th 234, 251/LADL appellate counsel represented parent) with counsel filing things late and forfeiting review upon appeal later down the road in dependency. The Supreme court of California recently ruled on this issue where appellant asked that the Supreme court reverse and remand due to ineffective assistance of counsel (IAC) precluding her from properly appealing her termination of parental rights to the appellate court. Appellant cited that her “fundamental liberty interest … in retaining a parent-child relationship” safeguarded by her due process rights to competent counsel and right to appeal were violated when the appellate court rejected her notice for appeal for being four days late (through no fault of her own).
Appellant requested that the supreme court apply the constructive filing doctrine also known as the RELIEF FROM DEFAULT codified in Calif C.C.P. § 473. This basically is a form of relief from default (being the automatic denial of appeal due to lateness) and the relief would mandate that the lower court hear the case even though the statutory deadline has passed.
There were quite a few issues that I find could be used in a future amicus curiae for any future LPS Conservatorship appellant who wishes to raise the same issue and state that they are similarly situated with in re A.R. (In re A.R. (2021) 11 Cal.5th 234, 251.) Again, I’ll provide my posture and discuss each point seriatim.
One of the major disagreements raised in re A.R was the pitting of the parent’s rights again the purpose of the juvenile dependency system as it exists “to provide maximum safety and protection for children …ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.” (Welf. & Inst. Code, § 300.2.) Opposing counsel reasoned that the application of the constructive filing doctrine in this case “would be clearly impracticable or inappropriate” due to the “paramount importance” of the child and the special need for finality and stability in termination of court proceedings.
It is anticipated that opposing counsel for LPS Conservatorship would have similar reasoning in Welf & I C § 5350 et seq:
In appointing a conservator, the court shall consider the purposes of protection of the public and the treatment of the conservatee.
Understandably we lack the need for children’s permanency like in dependency. However, the same conflict exists as we are concerned with the pitting of the protection of the public and the treatment of the conservatee against the protection of their due process rights. We are concerned with adequately treating the conservatee’s and preventing a recurrence of grave disability against any unwanted violation of their due process rights because as we know LPS Conservatees are afforded protection under the highest burden of proof, grave disability beyond a reasonable doubt, (Roulet).
The A.R. court states that terminating parental rights is sometimes necessary …but it is a uniquely serious in that it is widely recognized as ranking “among the most severe forms of state action.” Because of this, parents risk such serious state action, they are afforded several legal safeguards, the first protection is the right to competent counsel and the second is the right of appeal. Although these rights are valuable, opposing counsel will always argue that “the paramount concern is the child’s welfare, and in particular the child’s interest in the finality of the proceedings” and that raising IAC claims would only prolong the court process and not provide the minor with the stability that is in their best interest.
NOTE: It then noted that the legislative history of the provision, too, supported the conclusion that “the statutory right to competent counsel carries with it the right to judicial review.”
LPS Conservatorship may lack the termination of parental rights actions or the minor in need of a permanent placement, but a strong argument could be made that LPS Conservatees have greater deprivations than dependency appellants as conservatees face indefinite placement (Conservatorship of E.B. (2020)). Because of this conservatees have the legal safeguard of proof beyond a reasonable doubt when appointing an LPS Conservator. Additionally, the conservatee has greater cause for a expeditious appeal as they face confinement in a closed locked facility which can undue distress should they not have their matter resolved in a timely manner.
Like dependency, the court shall also when petitioning for appointment of LPS conservator, appoint counsel pursuant to Welf & I C §5365. Although not explicitly codified in Welf & I C, conservatees should have a provision specifying, in explicit terms, that “[a]ll parties who are represented by counsel at LPS Conservatorship proceedings” are “entitled to competent counsel” and by extension judicial review of their counsel’s actions. As in the A.R. court, the second procedural safeguard afforded is the right to appeal. Like parents, conservatees have the right to appeal establishment of LPS Conservatorship.
Which brings us to the same point that the A.R. court raised; in an LPS Conservatorship hearing with the same fact pattern, does counsel’s actions constitute a valid IAC claim?
As addressed by the Daigle court, IAC claims are not often raised successfully with LPS Conservatorship matters. The two prong Strickland standard makes raising a valid IAC claim harder than it sounds as most appellants cite that their counsel failed to listen to them or did not do as they asked of them. However, to remember to raise an IAC claim we need two prongs to be met. The first is that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of LPS Conservatorship law”. The second is that counsel’s errors were serious enough that the deficiency of counsel subjected the [appellant] to demonstrable prejudice. As in the harmless error analysis must be applied and demonstrate that counsel made an error so serious that there would have been an alternative outcome had that error not been made. Should both prongs be met, conservatees may seek relief for incompetent representation in LPS Conservatorship. I believe that IAC claims in LPS Conservatorship cases generally have been raised by means of a petition for habeas corpus to the appellate court not trial court.
In re A.R. (2021) 11 Cal.5th 234, 251, the supreme court found that counsel’s failure to file parent’s notice of appeal on time was to act in a manner to be expected of reasonably competent attorneys, the first Strickland prong, as counsel was provided time and notice of parent’s desire to appeal. This is not a simple issue of whether appellant disagreed with the trial strategy. Counsel failed to submit appellant’s request for appeal. The second prong, the deficiency of counsel subjected the parent to demonstrable prejudice, is clear in this case as the supreme court opined that counsel’s failure precluded mother from being able to even have a chance to present her appeal to the court.
The same Strickland standard should not deviate with LPS Conservatorship. If the same fact pattern were to apply, there is no difference in this aspect of meeting the IAC Strickland prongs. LPS Conservatorship attorneys should be expected to file patient’s notice of appeal in a timely manner and should counsel fail to meet the deadline through no fault of the patient’s, then counsel would have prejudiced the conservatee’s case as they lack the risk of “prejudiced case” as their counsel’s error has made it so that no case was even calendared. There exists no case to be prejudiced….
Even if San Diego’s counsel is on top of everything someone’s county public defender isn’t. If it happens at the dependency level, then it going to happen within the LPS Conservatorship division. In re A.R. (2021) stemmed from the foundations set forth by the criminal courts.
The third point addressed in whether relief from default should be granted was the parent’s effort in maintaining contact with their counsel. In both criminal and dependency court in order to maintain a successful claim to relief based on IAC, the appellant’s promptness and diligence in pursuing an appeal must be present In re Benoit (1973) 10 Cal.3d 72; In re A.R. (2021) 11 Cal.5th 234, 251. The A.R. court noted that granting relief from default would depend on the [appellant’s] diligence in pursuing their appeal. The court will not “indiscriminately permit” relief from default for appellant’s who “has displayed no diligence in seeing that his attorney has discharged [his] responsibility.” Simply put if the appellant has (1) failed to follow up with counsel about their progress in filing a notice of appeal, (2) did not file their merits brief right after filing their notice of appeal (timely or not), or (3) seeking recourse for their counsel’s lateness in filing through means of a writ of habeas corpus, the supreme court states that the appellant cannot request relief from default. Nor can they if they fail to raise this IAC issue 6 months after the missed deadline. However, the parent in this case did all three thus constituting diligent effort to remain in contact and up to speed with her appeal.
Like dependency, LPS Conservatorship do not need the unique situation that parents find themselves in to raise the same issues. Given that the two points made earlier are met, LPS Conservatees should if the record at either the trial court level or at a later evidentiary hearing at the appellate level demonstrate their promptness and diligence in communicating with their counsel be granted this relief.
The A.R. court notes that this need for appellant promptness is important as the costs of delay are particularly acute as the child is left without permanency. They are potentially stuck in a cycle of “endless” appeals and continuances. Endless as for a child, months can feel like forever and cause emotional trauma.
This opinion will differ from the A.R. opinion in that we are not dealing with minors but rather conservatees who are more similarly situated with prisoners. Other opinions have stated that this relief from default can be used a means to ensure the timely filing of court documents for prisoners who must rely on others, including prison officials and outside counsel in re Hollister Convalescent Hosp., Inc. v. Rico (1975). I would assert that LPS Conservatees are similarly situated in that they are subject to the aid of IMD staff, busy attorneys, and public conservators with large caseloads. They often do not have easy access to snail mail, phone calls, and emails.
Additionally, conservatees are subject to the unique factor that they are not cognitively intact. They are on LPS Conservatorship for a reason. Even though their medication may help with reducing the psychosis, they often have trouble understanding the complexities of the legal system, something most lay persons have trouble understanding. Because mental illness is biological, they should not be penalized for their trouble understanding deadlines and staying in contact with their counsel.
In applying whether the promptness and diligence in pursuing an appeal must be present for LPS Conservatees, present efforts should carry weight but failure to maintain a clear record of “staying on top of their attorney” should not be dispositive. We should do so that conservatees are not denied access to the appellate courts by obstacles . . . other litigants readily could overcome”.
Should all of the following in sections I- III be found true, then the reviewing court should order that the appellate court reverse the judgment of the Court of Appeal denying relief from default and remand for further proceedings consistent with this opinion.
Juvenile Dependency and