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COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT


Case No.
In re

Related Appeal
Pending Nos.

S J., et al.
Persons Coming Under the
Juvenile Court Law.
D.C.,

[ ] and [ ]
[ ] County Superior Court
Nos.

Petitioner,
v.
[ ] COUNTY SUPERIOR COURT
Sitting as a Juvenile Court,
Respondent.
[ ] COUNTY DEPARTMENT OF HEALTH
AND HUMAN SERVICES and [minors
first names with last name initials only]
Real Parties in Interest.
____________________________________
PETITION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE PRESIDING JUSTICE AND THE ASSOCIATE JUSTICES OF THE
COURT OF APPEAL, THIRD APPELLATE DISTRICT:
Petitioner, D. C., by and through her attorney,
, petitions for writ of habeas corpus
and by this verified petition sets forth the following facts and causes for the issuance of said writ:
I.
The trial court proceedings challenged in this petition are the subject of a pending appeal
in In re [ ], Case No. C
, Sacramento County Superior Court No. JD
. The present
petition is being filed in conjunction with said direct appeal.
II.
This petition is presented to this court under its original habeas corpus jurisdiction.
(Calif. Const., art. VI, sec. 10.) This Court is the appropriate forum to grant immediate relief
where evidence outside of the record supports petitioner=s claims of ineffective assistance of
counsel (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136), and where the order
terminating parental rights is not final because an appeal from that order has been filed (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1659, 1667; In re Carrie M. (2001) 90 Cal.App.4th

530, 533.) The grounds for relief set forth in this petition, except to the extent that they are
raised in the pending related appeal, have not been previously presented by this petitioner to this
or to any other court in any petition, motion, or application.
III.
Petitioner is the mother of the minors [names and dates of birth], who are the subject of
the above-described dependency proceedings and appeal in this Court.
IV.
Respondent is the Superior Court of the State of California in and for the County of
Sacramento, sitting as a juvenile court, which is and at all times alleged in this petition was a
tribunal exercising judicial functions in connection with the actions and proceedings described in
this petition in [ ] County Superior Court Nos.
.
V.
Real parties in interest are the [ ] County Department of Health and Human Services
(hereinafter Athe Department@) and the minors [ ].
VI.
All parties named above and their respective attorneys are properly joined in this petition
as parties directly affected by the present proceedings now pending before the respondent court.
All proceedings discussed in this petition have occurred within the territorial jurisdiction of
respondent court and of the Court of Appeal of the State of California, Third Appellate District.
Due to petitioner=s indigence, she was afforded court-appointed counsel in the dependency
proceedings below and [counsel], attorney at law, was appointed to represent petitioner in the
above-described appeal from the orders which terminated petitioner=s parental rights.
VII.
In order to avoid unnecessary duplication, petitioner incorporates into this petition the
record filed in the related appeal as though the record were fully set out at length. Petitioner
respectfully requests this court take judicial notice of the transcripts, files, briefs, motions and
records in appeal Case Nos. C0 and C0 . (Evid. Code Secs. 452, subd.(d), 459.)
VIII.
Four children of a seven-member sibling group are subject to this petition and the
pending appeal. The recommended permanent plan for S J. was adoption by his foster mother. S
J. was placed with two half-siblings, not subject to this petition, for whom long-term foster care
was the permanent plan. The three other children subject to this petition, C, M and I L., were
placed together in a foster home. Adoption by their caretakers was the recommended permanent
plan. Petitioner was incarcerated when the hearing held pursuant to Welfare and Institutions
Code1 section 366.26 for S J. commenced. Petitioner was represented by new counsel whom she
did not know, had never met and who did not attempt to locate petitioner when she failed to
appear for the hearing. Petitioner had appeared at the proceedings prior to her incarceration. At
S=s section 366.26 hearing, trial counsel failed to raise the exception to adoptability pursuant to
section 366.26, subdivision (c)(1)(E) (Asibling relationship exception@) even though the
children had lived together their entire lives before the dependency commenced, they had been
assessed as strongly and primarily bonded to each other and S had stated that he wanted to live
with all his siblings. On [ ], respondent court terminated petitioner=s parental rights for S.
Petitioner learned that her parental rights to S had been terminated after she was released from
custody on [ ]. She appeared at the continued section 366.26 hearings for C, M and I. Trial
1 All further statutory references are to Welfare and Institutions Code unless otherwise specified.
All rule references are to California Rules of Court.

counsel argued that the three children were not adoptable because the children had been placed
with their prospective adoptive parents less than six months and the caretakers had insufficient
experience to care for their severe behavioral problems. Trial counsel failed to argue that I=s
prior placement failed due to his behavioral problems and failed to argue the sibling relationship
exception for C, M and I. Trial counsel never informed petitioner that the children=s sibling
relationship was an exception to adoptability. On [ ], respondent court terminated petitioner=s
parental rights for C, M and I. In failing to attempt to locate petitioner by even a simple
investigation, which could revealed that she was incarcerated, and by failing to ascertain the
position of his client whom he had never met prior to representing her interests at the hearing
terminating parental rights for S, trial counsel failed to provide petitioner with effective
assistance. Further, by failing to advise petitioner of and raise the sibling relationship exception
to adoptability, trial counsel failed to provide petitioner with effective assistance. Further, by
failing to review the record and ascertain that I=s prior placement failed after six months due to
his severe behavioral problems, trial counsel failed to effectively advocate that the children were
not adoptable.
IX.
The facts of this case are more specifically described in the Statement of Case and Facts
presented below.
X.
Petitioner seeks extraordinary relief from this court in the first instance because petitioner
has no other plain, speedy, or adequate remedy at law in that the present petition is based upon
material not included in the record on appeal in Case Nos. C0 and C0
and/or because the
violations of petitioner=s constitutional rights are outside of the purview of the appeal.
Therefore, these issues cannot be raised in petitioner=s appeal.
XI.
Petitioner and her children have a clear, present and fundamental right to have the parentchild relationship terminated only where there has been strict compliance with statutory
requirements. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256; In re Marilyn H.
(1993) 5 Cal.4th 295, 307.)
XII.
Petitioner has a statutory right to the effective assistance of counsel. (Sec. 317.5.) That
right is also a fundamental right to effective assistance of counsel where, as here, termination of
parental rights is involved. (See In re Kristin H., supra, 46 Cal.App.4th at pp. 1658-1673;
Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-32.)
XIII.
In light of such fundamental rights, respondent court owes a duty to petitioner to refrain
from making orders without compliance with the statute and due process rights in terminating
petitioner=s parental rights and finding the children adoptable. The actions of respondent court
were contrary to law, unreasonable, arbitrary, and/or an abuse of discretion for the reasons
described below.
XIV.
The orders terminating petitioner=s parental rights must be reversed because petitioner
was denied effective assistance of counsel pursuant to Sec. 317.5 and the Fourteenth Amendment
to the United States Constitution and the denial of effective assistance of counsel prejudiced
petitioner.
XV.

Petitioner suffers from a grave prejudice in that the juvenile court failed to afford her due
process in terminating her parental rights and failed to ensure that her counsel provided her with
effective assistance, and, without those protections, terminated the parent-child relationship with
her four children.
XVI.
Petitioner believes that the record on her appeal is sufficient to entitle her to reversal of
the judgment based upon the issues raised therein. However, the record on petitioner=s appeal
may not be sufficient to establish the merits of the issues raised in this petition with respect to the
judgment terminating her parental rights, without reference to the accompanying declaration of
appellate counsel and petitioner, and petitioner has no plain, speedy, and/or adequate remedy at
law since much of the evidence which supports her claim was not before the court at the section
366.26 hearing. Declarations on the issue of ineffective assistance of counsel are admissible in
writ proceedings when, as here, the statements made by trial counsel constitute declarations
against trial counsel=s interest because they establish that trial counsel had no tactical reason for
the action or inaction complained of on appeal. (See Evid. Code Sec. 1230.) Declarations are
also admissible when, as here, they are statements of trial counsel=s then-existing state of mind
and the evidence is offered to prove or explain the acts or conduct of trial counsel. (In re Arturo
A. (1992) 8 Cal.App.4th 229, 243; In re Kristin H., supra, 46 Cal.App.4th at p. 1658.)
XVII.
Since it is necessary for petitioner to be able to cite to the record showing that trial
counsel had no satisfactory explanation for what was not done (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), it is necessary that this Court consider appellate counsel=s
declaration regarding the statements of trial counsel which demonstrate that there was no
satisfactory explanation or tactical reason for counsel=s failures.
WHEREFORE, petitioner respectfully requests that this court: (1) take judicial notice of
the record on appeal in the related appeal in Case Nos. C0 and C0 pursuant to Evidence
Code sections 452, subdivision (d), and 459; (2) consolidate this petition for consideration with
the related appeal which is now pending in this court; (3) issue a writ of habeas corpus and/or
order to show cause, commanding respondent court to vacate the orders terminating parental
rights or to show cause why the relief sought in the petition should not be granted; and, (4) grant
such other relief as is deemed to be appropriate in the interests of justice.
Dated:

Respectfully submitted,

Attorney for Petitioner

VERIFICATION
I, , state as follows:
I am the attorney for petitioner D.C. in this action. I am verifying this petition personally
because petitioner resides outside of the county in which I have my office; petitioner has verified
the information in her attached declaration but is not personally aware of the information
provided in the attached declaration I have executed; and, the facts presented herein are all either
by reference to the record on appeal or the declaration of appellate counsel. I make this
verification on petitioner=s behalf.
I have read the foregoing petition, including all matters incorporated therein by reference.
I am informed and believe that the facts alleged therein are supported by citations to the record
or declarations attached hereto.
I certify under penalty of perjury that the foregoing is true and correct. Executed at
[ ] California, on
.
[Attorney=s Name]

STATEMENT OF THE CASE AND FACTS


[Note: Habeas petition should have separate recitation of facts from AOB. Habeas must stand on
its own. It is not advisable to incorporate AOB facts by reference. If reference is to AOB and
appellate court issues an OSC, the facts will not be in the petition.]
ARGUMENT
HABEAS CORPUS IS A PROPER VEHICLE FOR THE PRESENTATION OF
PETITIONER'S CLAIM.
Petitioner asserts that she was deprived of her statutory and constitutional right to
effective assistance of counsel at the section 366.26 hearing. 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., supra, 46 Cal.App.4th at pp. 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., supra, 88 Cal.App.4th at p. 98, fn 1 citing In re Eileen A.,
supra, 84 Cal.App.4th at p. 1253; People v. Pope, supra, 23 Cal.3d at p. 426.) A 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 at p. 534.)
A habeas corpus proceeding is the proper vehicle to raise the issue of ineffective
assistance of counsel in a termination of parental rights case where the factual basis for the claim
rests in pertinent part on evidence not contained in the record on appeal. (Adoption of Michael
D., supra, 209 Cal.App.3d at p. 136; In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1101.) In this
case, the constitutional claim partially rests on facts not part of the record on appeal. In habeas
corpus, trial counsel is afforded the opportunity to explain trial strategy. (People v. Pope, supra,
23 Cal.3d at p. 426.) Although habeas corpus cannot serve as a second appeal, denial of the right
to counsel is a claim which has always been cognizable on habeas corpus whether or not it was
raised on appeal. (In re Hochberg (1970) 2 Cal.3d 870, 875.) 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.)
For the above-state reasons, habeas corpus is the procedurally proper vehicle for
petitioner to raise her statutory and constitutional right to denial of effective assistance of counsel
at the section 366.26 hearing.
I.

[Continue with points and authorities similar to AOB with reference to declarations]

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