IN RE: BLAKE C., a Minor. Anna L. & Willie F. ANDERSON, Petitioners and Respondents, v. CECIL C., Objector and Appellant. In re CECIL C. on Habeas Corpus.
Cecil Ann C. appeals from a judgment terminating her parental rights (Civ. Code, § 232, subds. (a)(1), (7).1 She also petitions this court for a writ of habeas corpus or, in the alternative, for relief under the Indian Child Welfare Act of 1978. The proceedings have been consolidated. (Order of Caldecott, P.J., filed Nov. 22, 1983). We deny the petitions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On May 19, 1977, appellant/petitioner Cecil Ann C. gave birth to Blake, her fifth child. Approximately six weeks later Cecil Ann took Blake to the home of her brother and his wife, Willie and Anna Anderson, and asked Anna to babysit Blake for about one hour. Cecil did not return to pick up Blake. Five days later the Andersons went to Cecil's home to return the baby. Although Cecil asked for Blake, Anna believed that she was too intoxicated to care for him. She and her husband collected some of Blake's clothes and returned home with him.
Ten months later Blake was declared a ward of the court and legally placed with the Andersons as foster parents. Almost two years thereafter wardship was terminated and the Andersons were named Blake's legal guardians. 15 months thereafter, the Andersons filed a petition to free Blake from parental custody and control.
Anna Anderson testified that during the five years Blake lived with her and her husband, Cecil Ann visited him only about six or seven times. She described 13 visits. In the first year Cecil came by the Anderson house twice, bringing a box of diapers and $20 that her father had told her to give to Anna. The second year she visited in August, at which time she was intoxicated. Halloween of that year she stopped by for help with her costume. Although she saw Blake, she did not visit with him. The third year she visited in May on Blake's birthday and again in November, at which time she stayed outside attending to the overheated radiator in her car. Blake was outside the house on the front porch. The fourth year she stopped by for 10 minutes in March and then visited Blake on his birthday in May. The next year (1981) she came to visit, but Blake was not there. She returned a month later in April, at which time she did see Blake. In May she took Blake to the shopping center to buy him something for his birthday. She visited again in September, but Anna would not permit her to take Blake out, explaining that after the last outing he had been “very, very upset that night and cried and was very frightened.” When Anna said that it would be better if Cecil visited Blake at the house, Cecil became angry and left. Ann returned to the Andersons' in January of 1982, at which time she brought Blake some belated Christmas presents and spent ten minutes with him. That was her last visit before trial.
Anna testified that Blake believes that she is his mother—his “mama.” His brother Cid has told him that Cecil is his mother, but he doesn't understand. Anna acknowledged that her relationship with Cecil Ann through the years has occasionally been hostile.
Cecil Ann testified that when she first left Blake with the Andersons for babysitting, “something happened,” and she telephoned to ask if Blake could spend the night. When she returned a few days later to take him home, she fell on the Andersons' front steps and broke her knee cap. She then left Blake with the Andersons because she could not care for him while she was on crutches.
Cecil acknowledged that from 1977 to 1980 she had a serious drinking problem that rendered her incapable of caring for Blake. She stopped drinking in November of 1980 when she was told that she would die if she continued. She testified that she never intended to abandon Blake and that she wants him to live with her now. She believed that her brother and his wife would take good care of him while her problems prevented her from doing so.
Although Cecil Ann did not chronicle her visits with Blake, she testified to three visits with him at her mother's house when Anna was not present. Photographs documenting the visits at her mother's and showing her with Blake in her arms during the 1978 Halloween visit to the Andersons', were introduced in evidence.
The investigating probation officer, Leonard Van Noord, stated his belief that Cecil Ann had left Blake with the Andersons for so long because it seemed to her to be the best thing to do at the time.
In the initial probation report, filed August 3, 1981, Mr. Van Noord reported that Cecil Ann explained that she had had only token communication with Blake because she has never gotten along with Mrs. Anderson and it was difficult for her to visit or see Blake. She did not think it would be best for Blake to be adopted, but she herself was not yet ready to have him live with her. She expressed the desire to have Blake come back to live with her once she “got her things together” and found a house big enough to accomodate him and his sister Ceylona, then living elsewhere, as well as his brother Cid, who was presently living with her. Mr. Van Noord recommended that the petition be granted.
Following the hearing, the court ordered a supplemental probation report. In Mr. Van Noord's interview Anna Anderson denied that she had ever initiated an argument with Cecil Ann, but stated that they had argued over Cecil Ann's involvement with Mr. S., her former husband and the pair's involvement with gang drug-wars. She related a shooting incident outside Cecil Ann's home. She claimed that Cecil Ann resented her going to the police about the incident, resulting in her (Cecil Ann's) arrest, and resented also her subsequent successful effort to have Blake declared a dependent child. Cecil Ann's resentment, Anna maintained, is the only reason she is contesting this action.
According to Anna, living with Cecil Ann is her nephew Donald, who has a police record involving drug offenses, her son Cid, who also reportedly has a past history of drugs, as well as burglary and assault, and Blake's alleged father Calvin, who reportedly has a long record of alcohol abuse, as well as a history of beating Cecil Ann and the children.
Statements by former and present neighbors of Cecil Ann, alleging incidents of unsavory behavior by members of her household, also were recorded in the supplemental report.
In an unannounced visit to Cecil Ann, Mr. Van Noord found present in the home, Calvin, Cid, and Cecil's nephew Donald. Cecil Ann stated that Anna had made it difficult for her to visit Blake. She expressed the belief that if Blake came to live with her, it would work out because he gets along well with Cid, and she now is able to care for him. Although Cid is something of a “problem,” her daughter Ceylona, now back in the home, is doing very well in all respects.
Donald's probation officer reported that he was on probation for drunk driving and hit and run, and confirmed his involvement with drugs. Ceylona's school principal described her as a responsible, mentally gifted minor who presents no difficulties. Law enforcement agency records relating to Calvin, Cid, and Donald were attached to the report furnished the trial court.
Mr. Van Noord met with Blake at the Andersons' home and observed him to be a happy child who has a close and loving relationship with the Andersons. The officer expressed his concern, based on information received from law-enforcement agencies, about the absence in Cecil Ann's home of a law-abiding atmosphere necessary for Blake's best future, as well as the ramifications of Cecil Ann's various medical difficulties which include a bad heart and bad legs.
Cecil Ann's statement denying Anna Anderson's allegations concerning her home environment and certain of the neighbors' reports was submitted to the court.
The trial court found by clear and convincing evidence that Blake should be declared free from his parents' custody and control because (1) his parents left him in the Andersons' care from July 1, 1977, to the present, during at least six months of which period they had the intent to abandon him, and that they made only token efforts to support or communicate with him (§ 232, subd. (a)(1)), and (2) for two consecutive years Blake had been cared for in a foster home, the Andersons' home, under the supervision of the Contra Costa County Social Service Department, and his natural parents were unlikely to provide a home for him or meet the other statutory responsibilities described in subdivision (a)(7) of section 232. The court found also that the return of Blake to his natural parents would be detrimental to him and that it is in his best interests to remain with the Andersons. Only Blake's mother appealed.2
I. Sufficiency of the Evidence
Cecil Ann challenges the sufficiency of the evidence to support the findings underlying the judgment grounded on either abandonment (§ 232, subd. (a)(1)) or foster home placement (id., subd. (a)(7)).
On review of the trial court's findings in section 232 proceedings, the appellate court “ ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].’ [Citations.]” (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198; see In re Robert J. (1982) 129 Cal.App.3d 894, 901, 181 Cal.Rptr. 188.)
It is the trial court's duty to determine whether the petitioner met its burden of proof by clear and convincing evidence; it is the reviewing court's duty to determine whether there is substantial evidence to support the trial court's finding that it did. (In re Robert J., supra; see In re Lynna B. (1979) 92 Cal.App.3d 682, 701, 155 Cal.Rptr. 256.)
At the time of trial, subdivision (a)(1) of section 232 provided in pertinent part for termination of parental rights when the child “has been left by both of his parents or his sole parent in the care and custody of another for a period of six months ․ without any provision for his support, or without communication from such parent or parents, with the intent on the part of such parent or parents to abandon such person. Such ․ failure to provide, or failure to communicate shall be presumptive evidence of the intent to abandon․ If in the opinion of the court the evidence indicates that such parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned․” (West's Civ.Code Ann. (1982) § 232, subd. (a)(1).)
Cecil Ann concedes that there is sufficient evidence to support the trial court's finding of only token communication or support. She maintains, however, that viewed in the context of her physical ill health and Anna Anderson's hostility and obstruction of the visits, together with her intent not to abandon Blake, the assertedly token communication cannot support the presumption of an intent to abandon.
Intent to abandon is a question of fact. (In re Morrow (1970) 9 Cal.App.3d 39, 47, 88 Cal.Rptr. 142, disapproved on other grounds in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349; In re Gano (1958) 160 Cal.App.2d 700, 705–706, 325 P.2d 485.) When the evidence permits the conclusion of only token efforts to communicate with the child, “Unless the presumption of abandonment raised by [that] fact has been overcome as a matter of law, the findings and order of the trial court under subdivision (a) must be sustained.” (In re Morrow, supra, 9 Cal.App.3d at p. 52, 88 Cal.Rptr. 142.)
The trial court was not required to believe Cecil Ann's testimony as to her intent, nor does such testimony of itself overcome the presumption of abandonment as a matter of law. (See In re Gano, supra, 160 Cal.App.2d at p. 710, 325 P.2d 485.) Moreover, even were we to assume that Cecil Ann's testimony served to overcome the statutory presumption (see In re Rose G. (1976) 57 Cal.App.3d 406, 424, 129 Cal.Rptr. 338), the evidence nevertheless is sufficient to sustain the trial court's determination (ibid.).
“Intent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire.” (In re Rose G., supra, 57 Cal.App.3d at p. 424, 129 Cal.Rptr. 338.) In determining a parent's intent to abandon, the trial court may consider not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of the effort under all the circumstances (In re Jack H. (1980) 106 Cal.App.3d 257, 265, 165 Cal.Rptr. 646), as well as the quality of the communication that occurs (In re Rose G., supra ).
During the five-year period at issue here, Cecil Ann lived only one-and one-half to three miles away from the Andersons, yet for two separate periods of six months or more she made no effort to communicate with Blake either in person or by letter. (Cf. In re T.M.R. (1974) 41 Cal.App.3d 694, 698, 116 Cal.Rptr. 292 [incarcerated mother regularly wrote to her children].) Neither did she attend the 1980 guardianship proceedings. (Cf. In re Susan M. (1975) 53 Cal.App.3d 300, 308–309, 125 Cal.Rptr. 707 [mother with mental problems regularly made inquiry about child and attended review proceeding].)
Equally significant, of the thirteen visits Cecil Ann made to the Andersons' home, the evidence shows that on at least five occasions no actual visit with Blake occurred: on one occasion Cecil Ann was intoxicated (thus presumably incapable of any real “visit”); on two occasions she “saw” Blake but did not “visit” with him; and on two occasions she did not see Blake at all (once because he was not at home and once because she left when Anna refused to let her take Blake out). (See facts, supra, at p. 766.) Two other visits lasted no more than ten minutes. Anna Anderson testified: “As far as sitting and spending any time with him, no she didn't and never has.”
The trial court was not required to find that Cecil Ann's ill health, alcoholism, and other adverse circumstances excused her lack of interest in Blake. The weight to be given to a parent's excuses for past conduct and her rehabilitation is for the trial court. (In re Maxwell (1953) 117 Cal.App.2d 156, 166, 255 P.2d 87; see In re Morrow, supra, 9 Cal.App.3d at p. 53–54, 57, 88 Cal.Rptr. 142; In re Gano, supra, 160 Cal.App.2d at p. 706, 325 P.2d 485.)
While the evidence relating to Cecil Ann's intent is largely circumstantial, “that does not render such evidence insubstantial, nor preclude the trial court from accepting it as ‘clear and convincing’ in accord with the statutory standard.” (In re Robert J., supra, 129 Cal.App.3d at p. 901, 181 Cal.Rptr. 188.) There is sufficient substantial evidence to support the trial court's determination of an intent to abandon.
B. Foster Home Placement
At the time of trial subdivision (a)(7) of section 232 provided for the termination of parental rights when the child “has been cared for in one or more foster homes, ․ under the supervision of the juvenile court, the county welfare department or other public or private licensed child-placing agency for two or more consecutive years, providing that the court finds by clear and convincing evidence that return of the child to his parent or parents would be detrimental to the child and that the parent or parents have failed during such period, and are likely to fail in the future, to ․ [¶] (i) Provide a home for the child; [¶] (ii) Provide care and control for the child; and [¶] (iii) Maintain an adequate parental relationship with the child․” (West's Civ.Code Ann., supra, § 232, subd. (a)(7).)
Relying on In re Antonio F. (1978) 78 Cal.App.3d 440, 453–454, 144 Cal.Rptr. 466, Cecil Ann asserts that a child living with relatives, as is Blake, is not in a “foster home” for purposes of subdivision (a)(7). Although Antonio F. supports this assertion, in In re Laura F. (1983) 33 Cal.3d 826, 191 Cal.Rptr. 464, 662 P.2d 922, the Supreme Court disapproved the Antonio F. definition of foster home as both “unnecessary to the decision and wrong.” (Id., at p. 830, 191 Cal.Rptr. 464, 662 P.2d 922.) To limit foster care to nonrelatives, the court stated, “would surely not be consonant with the purpose of the statute, as stated in section 232.6, to ‘serve the welfare and best interests of a child by providing the stability and security of an adoptive home when those conditions are missing from his or her life.’ ” (Id., at p. 831, 191 Cal.Rptr. 464, 662 P.2d 922.) Consequently, placement with relatives satisfies the statutory requirement of two years placement in a “foster home.” (Ibid.)
Cecil Ann argues additionally that the evidence does not support the court's finding that she was likely in the future to fail to provide a home for Blake, to provide care and control for him, and to maintain an adequate parental relationship with him.
As stated in In re Norma M. (1978) 77 Cal.App.3d 110, 116, 143 Cal.Rptr. 412: “The statute requires a finding that the parents have failed and are likely to fail in the future to provide such a home and family relationship. Of course, no one can predict the future with absolute certainty. The trial judge is called upon, in these cases, to simply determine the likelihood of whether the parent will in the future make a marked change in his or her behavior pattern in relation to the child. Unquestionably the parents' ‘track record’ prior to the hearing is the best indication of such a likelihood.” (Italics in the original; see In re Laura F., supra, 33 Cal.3d at p. 833, 191 Cal.Rptr. 464, 662 P.2d 922; In re Angelia P., supra, 28 Cal.3d at p. 925, 171 Cal.Rptr. 637, 623 P.2d 198; In re Lynna B., supra, 92 Cal.App.3d at p. 700, 155 Cal.Rptr. 256.)
In the present case Cecil Ann failed to provide a home for Blake during his critical early years. The evidence of the character of the present members of the household—Blake's brother Cid, his alleged father Calvin, and his cousin Donald, all of whom have a history of involvement with law enforcement authorities—casts doubt on the suitability of the home she now offers. (See In re Jack H., supra, 106 Cal.App.3d at p. 268, 165 Cal.Rptr. 646 [court may consider mother's relationship with live-in man].)
Moreover, Cecil Ann's present ability to provide a “house” for Blake does not of itself demonstrate that she can provide him with a “home.” As the court observed in In re Lynna B., supra, the Legislature, in using the word “home,” intended a broader meaning: “A place where one lives with his or her family, a place where one feels secure with its familiar conditions, circumstances and associations.” (92 Cal.App.3d at p. 699, 155 Cal.Rptr. 256.) Blake, insofar as the record reflects, has never been to Cecil Ann's present house and according to Anna Anderson, when Blake told her that he was going to live with Cid, he cried and clung to her and asked Anna to come and bring him back.
Finally, in determining the likelihood that the parent will in the future provide a home for the child, the trial court may properly consider the nature and quality of the parent-child relationship. (In re Lynna B., supra, 92 Cal.App.3d at p. 700, 155 Cal.Rptr. 256.) Blake has seen his biological mother only two or three times a year since he was six weeks old. He perceives Anna Anderson as his “mama.” Whatever the cause of the initial parent-child estrangement, the trial court could properly conclude that there was little likelihood that a natural mother-child relationship could be established. (Ibid.) In these circumstances, neither Cecil Ann's rehabilitation from alcoholism, however laudatory, nor her reestablishment of a relationship with Cid and Ceylona, is determinative of the issue of her future relationship with Blake. (See In re Lynna B., supra, 92 Cal.App.3d at p. 701, 155 Cal.Rptr. 256 and cases cited; cf. In re Angelia P., supra, 28 Cal.3d at p. 922, 171 Cal.Rptr. 637, 623 P.2d 198 [court could exclude evidence relating to other children].)
“[T]he existence or nonexistence of conditions compelling an order freeing the child is a determination ‘properly exercisable within the broad discretion invested in the trial court.’ [Citation.]” (In re Lynna B., supra, 92 Cal.App.3d at p. 701, 155 Cal.Rptr. 256.) Substantial evidence supports the trial court's determination that Cecil Ann has failed and is likely to fail to provide a home for Blake, to provide care and control for him, and to maintain an adequate parental relationship with him.
C. Remedial Services
Cecil Ann asserts that the court erred in failing to consider the usefulness of remedial services to prevent the breakup of the family. (In re Susan M., supra, 53 Cal.App.3d at p. 311, 125 Cal.Rptr. 707.) She correctly argues that such services, if not offered before the initiation of termination proceedings, must be considered by the trial court. (In re Lynna B., supra, 92 Cal.App.3d at pp. 701–702, 155 Cal.Rptr. 256.) She is mistaken, however, in her premise that such services were not considered here.
The record discloses that the issue of social services was presented to the court by Cecil Ann's counsel in argument, when he urged that the use of social services to have Blake “introduced back [sic ] into the home” would be an alternative to termination of Cecil Ann's parental rights. The presumption is that the trial court properly followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 915, 141 Cal.Rptr. 133, 569 P.2d 727; People v. Angus (1980) 114 Cal.App.3d 973, 987, 171 Cal.Rptr. 5; People v. Green (1979) 95 Cal.App.3d 991, 1001, 157 Cal.Rptr. 520; see Evid.Code, § 664.) We conclude that the trial court considered and impliedly rejected the use of social services, as it had the discretion to do (In re David B. (1979) 91 Cal.App.3d 184, 198–199, 154 Cal.Rptr. 63; In re Robert J., supra, 129 Cal.App.3d at p. 902, 181 Cal.Rptr. 188; In re Heidi T. (1978) 87 Cal.App.3d 864, 874, 151 Cal.Rptr. 263).
D. Detriment and Child's Best Interests
Cecil Ann argues that the court failed to make the necessary finding that immediate severance of the parental relationship is the least detrimental alternative available to protect the welfare of the child (In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514) and further, that the evidence in any event would not support such a finding, nor does it support the finding that return of custody to her would be detrimental (In re B.G. (1974) 11 Cal.3d 679, 698–699, 114 Cal.Rptr. 444, 523 P.2d 244).
In In re Carmaleta B., supra, the Supreme Court reiterated its holding in In re B.G., supra, that Civil Code section 4600 3 applies to section 232 cases, and that the statute requires a finding that placement away from the parent is the least detrimental alternative and “ ‘is essential to avert harm to the child․’ ” (21 Cal.3d at pp. 495–496, 146 Cal.Rptr. 623, 579 P.2d 514, italics omitted.) However, no particular form of findings is required. (In re Richard E. (1978) 21 Cal.3d 349, 357, 146 Cal.Rptr. 604, 579 P.2d 495.) Here the trial court did specifically find that the return of Blake to his mother would be detrimental to him and that it is in his best interests to remain with the Andersons. These findings, if supported by substantial evidence, are sufficient to support the order terminating Cecil Ann's parental rights. (In re Richard E., supra, 21 Cal.3d at pp. 356–357, 146 Cal.Rptr. 604, 579 P.2d 495; see In re Carmaleta B., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. 623, 579 P.2d 514; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 422, 159 Cal.Rptr. 460; cf. In re Susan M., supra, 53 Cal.App.3d at p. 315, 125 Cal.Rptr. 707 [findings presumed].)
Reviewing the record in the light most favorable to the judgment, we conclude that there is substantial evidence supportive of the trial court's findings. Blake has lived with the Andersons since he was six weeks old. Anna Anderson is the only mother, in the true sense of the word, that he has ever known. Whereas Cecil Ann presently seeks only to preserve the status quo, leaving Blake's future uncertain, the Andersons wish to adopt him.
“[T]he purpose of the statute permitting termination of parental rights is to ‘serve the welfare and best interests of a child by providing the stability and security of an adoptive home․’ [Citations.]” (In re Laura F., supra, 33 Cal.3d at 837, 191 Cal.Rptr. 464, 662 P.2d 922; see In re Heidi T., supra, 87 Cal.App.3d at 874, fn. 9, 151 Cal.Rptr. 263; see also § 232.6.) “ ‘The interest sought to be protected is that of the welfare of a child. Its need to be raised with love, emotional security and physical safety is paramount to any right of a neglectful parent to have the custody and physical proximity of its child․’ ” (In re D.L.C. (1976) 54 Cal.App.3d 840, 851, 126 Cal.Rptr. 863; see In re Angelia P., supra, 28 Cal.3d at p. 923, 171 Cal.Rptr. 637, 623 P.2d 198.) “In view of [Blake's] uninterrupted ․ residency with the foster parents who wish to adopt [him], the trial court could reasonably conclude that severance of the parental relationship in order to permit the proposed adoption was demonstrably the least drastic measure.” (In re Heidi T., supra, 87 Cal.App.3d at p. 874, fn. 9, 151 Cal.Rptr. 263.) 4
II. Competence of Counsel
Relying on In re Rodriguez (1973) 34 Cal.App.3d 510, 110 Cal.Rptr. 56, Cecil Ann maintains that in termination proceedings indigent parents have a due process right to counsel, which embraces the right to reasonably effective counsel (see People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859; Brubaker v. Dickson (9th Cir.1962) 310 F.2d 30, 37). She asserts that reversal is required because she was ineffectively represented. In her brief on appeal she cites (1) counsel's failure to advance the Antonio F., supra, argument that the foster-home placement provisions of subdivision (a)(7) of section 232 are inapplicable to placements with relatives (78 Cal.App.3d at pp. 453–454), and (2) his failure to consider the applicability to this case of the Indian Child Welfare Act of 1978 (25 U.S.C.A. ch. 21, §§ 1901–1963), which Act affords the parents of an Indian child in termination proceedings substantive and procedural safeguards beyond those provided by state law (see discussion post at p. 27 et seq.).
Pursuant to section 237.5, the Legislature has mandated the appointment of counsel for indigent parents in section 232 proceedings. (§ 237.5, subd. (b); see Crespo v. Superior Court (1974) 41 Cal.App.3d 115, 118, 115 Cal.Rptr. 681; cf. In re Jacqueline H. (1978) 21 Cal.3d 170, 176, 145 Cal.Rptr. 548, 577 P.2d 683 [counsel on appeal].) In In re Rodriguez, supra, the court stated that in the absence of the statutory right, federal due process would require the appointment of counsel. (34 Cal.App.3d at p. 514–515, 110 Cal.Rptr. 56.) Subsequent to Rodriguez, however, the United States Supreme Court held that there is no federal constitutional right to counsel in a termination case. Rather, whether Fourteenth Amendment due process calls for such appointment in a particular case is a question of fact for the trial court, in light of all the circumstances, and subject to appellate review. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31–32, 101 S.Ct. 2153, 2161–2162, 68 L.Ed.2d 640; see 6 Witkin, Summary of Cal.Law (Supp.1984), Parent and Child, § 113A, p. 252.)
Apart from Rodriguez, the only California case to consider the right to counsel in section 232 proceedings is In re Jacqueline H., supra, 21 Cal.3d 170, 145 Cal.Rptr. 548, 577 P.2d 683, also decided before Lassiter, supra. At issue was an indigent mother's right to appointed counsel on appeal. Although the mother argued that she had a constitutional right to appointed counsel, the court found it unnecessary to decide the question because it construed sections 237.5 and 238 (right to appeal) as requiring the appointment of appellate counsel. (Id., at pp. 177–178, 145 Cal.Rptr. 548, 577 P.2d 683.)
We are aware of only two situations, excluding commitment proceedings (e.g., People v. Moore (1968) 69 Cal.2d 674, 681, 72 Cal.Rptr. 800, 446 P.2d 800, disapproved on other grounds in People v. Thomas (1977) 19 Cal.3d 630, 641, fn. 8, 139 Cal.Rptr. 594, 566 P.2d 228), in which our Supreme Court has recognized a due process right to appointed counsel for indigents in civil cases. The first is when an indigent prisoner is threatened with a judicially sanctioned deprivation of property and the trial court determines that his right to a meaningful opportunity to be heard requires the appointment of counsel. (Payne v. Superior Court (1976) 17 Cal.3d 908, 924, 927, 132 Cal.Rptr. 405, 553 P.2d 565.) The second is in a paternity action prosecuted by the state. (Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226.)
“The touchstone of due process,” the court explained in Salas, supra, “is fundamental fairness. Whether due process requires the appointment of counsel in a particular case depends on the interests involved and the nature of the proceedings. [Citations.]” (24 Cal.3d at p. 27, 154 Cal.Rptr. 529, 593 P.2d 226.) Paternity proceedings, the court observed, are distinguished from other civil proceedings in that a court's determination of paternity potentially exposes the defendant to a deprivation of liberty. “Failure to support a child may ․ be prosecuted criminally. (Pen.Code, § 270.) [Fn.] While an indigent is entitled to counsel if prosecuted criminally for nonsupport, the most significant element of the offense—paternity—may have already been determined in a civil proceeding in which the defendant was unrepresented by counsel. The prior civil judgment is admissible in criminal proceedings for nonsupport. (Pen.Code, § 270e.) [Fn.]” (24 Cal.3d at pp. 28–29, 154 Cal.Rptr. 529, 593 P.2d 226.)
Cases recognizing the fundamental nature of the parenting right and the drastic consequences of a final severance of the parent-child relationship abound. (See, e.g., In re Angelia P., supra, 28 Cal.3d at pp. 915–916, 171 Cal.Rptr. 637, 623 P.2d 198; In re Carmaleta B., supra, 21 Cal.3d at p. 489, 146 Cal.Rptr. 623, 579 P.2d 514; In re B.G., supra, 11 Cal.3d at p. 688, 114 Cal.Rptr. 444, 523 P.2d 244; In re Susan M., supra, 53 Cal.App.3d at p. 310, 125 Cal.Rptr. 707; see also Lassiter v. Department of Social Services, supra, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640; Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.) Nevertheless, a parent's liberty interest in his or her child has thus far not been equated with an individual's liberty interest in freedom from unjustified confinement. As our Supreme Court stated in In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198, relating to the burden of proof standard in termination proceedings: “In criminal proceedings, where the conflicting interests involve an individual's freedom and the state's enforcement of its criminal laws, courts have traditionally been particularly sensitive to the citizen's liberty․ Moreover, we have not refused to extend the ‘beyond reasonable doubt’ test to those noncriminal situations in which a personal freedom similarly collides with the state's interest in confinement for the protection of both the public and the individual. [Citation.] Such a liberty interest is not herein presented.” (Id., at p. 918, 171 Cal.Rptr. 637, 623 P.2d 198.)
Because termination proceedings do not involve potential criminal liability, the considerations applicable in Salas v. Cortez, supra, 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226, do not obtain. And because Cecil Ann had the opportunity to both appear and defend in the trial court, the concerns underlying the court's decision in Payne, supra, 17 Cal.3d at pp. 926–927, 132 Cal.Rptr. 405, 553 P.2d 565, are likewise inapposite. (See Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 216 Cal.Rptr. 425, 702 P.2d 583; cf. In re Jay R. (1983) 150 Cal.App.3d 251, 197 Cal.Rptr. 672.)
Therefore, unless and until our supreme Court decides otherwise, we hold that the California Constitution (art. I, § 7(a)), like the federal Constitution (see Lassiter v. Department of Social Services, supra, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640), does not require the appointment of counsel for indigent parents in section 232 proceedings.
Moreover, even were we to assume that indigent parents have a due process right to appointed counsel, it does not follow that an asserted denial of the “effective” assistance of counsel is grounds for reversal. Section 232 proceedings are fundamentally civil in nature. (See In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198; cf. In re Michael S. (1981) 127 Cal.App.3d 348, 363, 179 Cal.Rptr. 546 [dependency proceedings].) “The purpose of the statute is to protect children, not to punish a criminal offender. The interest sought to be protected is that of the welfare of a child.” (In re Sherman M. (1974) 39 Cal.App.3d 40, 44, 113 Cal.Rptr. 847; see In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198; but see In re Rodriguez, supra, 34 Cal.App.3d at p. 514, 110 Cal.Rptr. 56.) With the exception of juvenile delinquency proceedings (see In re William F. (1974) 11 Cal.3d 249, 252–255, 113 Cal.Rptr. 170, 520 P.2d 986; In re Cassandra R. (1983) 139 Cal.App.3d 670, 188 Cal.Rptr. 758), which are quasi-criminal in nature (In re Gault (1967) 387 U.S. 1, 49–50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527), the general rule in civil cases is that denial of effective assistance of counsel is not an issue cognizable on appeal or in collateral writ proceedings (see White v. Board of Medical Quality Assurance (1982) 128 Cal.App.3d 699, 707, 180 Cal.Rptr. 516 [disciplinary action against licensee]; In re Michael S., supra, at p. 364, 179 Cal.Rptr. 546 [dependency proceeding]; Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978–979, 164 Cal.Rptr. 118 [civil action with punitive damages] ).
The only two California Appellate Court cases of which we are aware that raise the issue are not particularly helpful in deciding this case. The first finds “it unnecessary to rule on the inadequacy-of-counsel contentions” because, of an inadequate record and reversal on other grounds (In re David C. (1984) 152 Cal.App.3d 1189, 1207, 200 Cal.Rptr. 115). The most recent case concludes that the absence of a reporters transcript has deprived the parents of a potentially meritorious claim because none of the grounds for permanent termination of the parents' rights are supported by the only evidence introduced, i.e., the probation officer's report; the court then concludes that this demonstrates prejudice to the parents by neglect of counsel (In re Christina P. (1985) 175 Cal.App.3d 115, 137, 220 Cal.Rptr. 525); to characterize the failure of counsel to order a court reporter as “incompetency” overstates the holding. For, on the record then before the trial court there simply was insufficient evidence to support the judgment. Thus, whether incompetence of counsel in unsuccessfully resisting a 232 petition is grounds for reversal, is still an open question in California.
Furthermore, even were it a recognized ground for reversal Cecil Ann's claims of ineffective assistance find no support in this record. Counsel's failure to argue that placement with relatives is not a “foster-home” placement was not prejudicial (see Code of Civ.Proc., § 475), in light of the Supreme Court's disapproval of the Antonio F., supra, 78 Cal.App.3d at pp. 453–454, 144 Cal.Rptr. 466, dictum to that effect (In re Laura F., supra, 33 Cal.3d at pp. 830–831, 191 Cal.Rptr. 464, 662 P.2d 922).
Nor does the record disclose that Cecil Ann was entitled to invoke the Indian Child Welfare Act. The Act applies only to an “Indian child.” (25 U.S.C.A., §§ 1903, subds. (1), (4), 1912.) Nothing in the record suggests that Blake is such a child or that counsel knew or had reason to know that he is.5
In apparent recognition of the fact that counsel's inadequacy does not appear on the face of the record, Cecil Ann has filed with her appeal a petition for a writ of habeas corpus, in which she alleges the same grounds for counsel's ineffectiveness as are alleged in the appeal, as well as additional grounds. Attached to the petition are numerous affidavits supportive of her assertions. However, even assuming that ineffective assistance of counsel is an issue cognizable on appeal in section 232 proceedings, we are unaware of any authority which permits a separate action for writ of habeas corpus in which to explore the factual basis of the claim, as is available in criminal proceedings. (Cf. White v. Board of Medical Quality Assurance, supra, 128 Cal.App.3d at p. 707, fn. 1, 180 Cal.Rptr. 516.) This court, therefore, “is without basis in fact or legal precedent to find reversible error․” (id., at p. 708, 180 Cal.Rptr. 516) on the grounds of ineffective assistance of counsel (ibid.).
III. Indian Child Welfare Act
As an alternative to her petition for habeas corpus, Cecil Ann petitions this court pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C.A. ch. 21, §§ 1901–1963) to invalidate the trial court's order on grounds that the proceedings were in violation of the provisions of the Act.
The Indian Child Welfare Act (the Act) was enacted “ ‘․ to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster homes or adoptive homes which will reflect the unique values of Indian culture, ․’ (25 U.S.C.A. ch. 21, § 1902.)” 6 (In re Junious M. (1983) 144 Cal.App.3d 786, 789–790, 193 Cal.Rptr. 40.)
Subchapter I of the Act deals with custody proceedings involving Indian children. A “child custody proceeding,” as that term is used in the Act, refers to proceedings for foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. (§ 1903, subd. (1); In re Junious M., supra, at p. 790, 193 Cal.Rptr. 40.) In furtherance of the legislative purpose, the Act grants an Indian tribe exclusive jurisdiction over any such proceeding involving an Indian child who resides or is domiciled within its reservation (§ 1911, subd. (a)), requires transfer of a proceeding initiated in state court to the tribe in certain circumstances where the child is not so domiciled (id., subd. (b)), and entitles the tribe to intervene in the state court proceedings in cases which are not transferred (id., subd. (c)).
Because “the tribe's right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending” (In re Junious M., supra, 144 Cal.App.3d at pp. 790–791, 193 Cal.Rptr. 40), section 1912 provides for notice as follows: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child [7 ] is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian [8 ] and the Indian child's tribe, ․” (§ 1912, subd. (a).)
Insofar as here pertinent, other provisions of section 1912 require (1) the petitioner in proceedings for a foster care placement or termination of parental rights involving an Indian child to “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful” (§ 1912, subd. (d)); and (2) in a proceeding for termination of parental rights, “a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” (id., subd. (f)).
Pursuant to section 1914, violation of section 1912 and certain other provisions of the Act may be cause for invalidation of the child custody proceedings. Section 1914 provides: “Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.”
Relying on section 1914, Cecil Ann argues that the termination order in the instant case violated section 1912 of the Act and that this court is a court of competent jurisdiction to entertain a petition to invalidate the judgment. Affidavits supportive of her claim that Blake is an Indian child are attached to the petition.
The Andersons respond that Cecil Ann cannot raise the Indian Child Welfare Act for the first time on appeal. (See Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679, 9 Cal.Rptr. 90.) They also challenge Cecil Ann's premise that this court can take judicial notice of her exhibits purporting to establish that Blake is an Indian child, and they dispute that he qualified as such at the time of the trial court's order, as is necessary for the Act to apply (In re Junious M., supra, 144 Cal.App.3d at p. 798, 193 Cal.Rptr. 40).
We find it unnecessary to our disposition in this case to resolve the foregoing issues because we have concluded that we are not a “court of competent jurisdiction” to entertain the section 1914 petition. Article VI, section 10 of the California Constitution limits the original jurisdiction of the Courts of Appeal to habeas corpus proceedings and “proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” A section 1914 petition to invalidate the trial court's action is not a petition in the nature of an extraordinary writ (see 2 Witkin, Cal. Procedure, (3d ed.1985) Extraordinary Writs, §§ 1–2, pp. 640–644), and therefore is not within our original jurisdiction. (See generally People ex. rel. S.F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 537–538, 72 Cal.Rptr. 790, 446 P.2d 790; Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 729–731, 192 P.2d 916; 2 Witkin, supra, Courts, § 130, pp. 153–154, § 267, pp. 289–290.) The appropriate forum for the petition is the superior court. (See Cal. Const. art. VI, § 10.)
The judgment of the trial court is affirmed. The petition for habeas corpus is denied. The section 1914 petition for relief under the Indian Child Welfare Act is denied.
1. All further statutory references are to the Civil Code unless otherwise indicated.
2. Blake's alleged father, Calvin C., did not contest the action.
3. Section 4600 provides in pertinent part: “In any proceeding where there is at issue the custody of a minor child, ․ [¶] Before the court makes any order awarding custody to a person or persons other than a parent ․ it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child․”
4. In Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 218 Cal.Rptr. 39, 705 P.2d 362 (Opn. by Broussard, J., with Grodin, J., conc.; sep. conc. opns. by Kaus, J., and Mosk, J.; Reynoso, J., dis. with Bird, C.J., conc.) Justice Broussard in a footnote observed: “Judicial decisions have recognized harm to a child which results when he is removed from a stable home environment. [Citations.]” In Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 117 Cal.Rptr. 856, the court concluded with a quotation from Williams v. Neumann (Ky.App.1966) 405 S.W.2d 556, 557: ‘ “[A child] cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment.” ’ [ (44 Cal.App.3d at] p. 707 [117 Cal.Rptr. 856].)” (39 Cal.3d at p. 795, fn. 7, 218 Cal.Rptr. 39, 705 P.2d 362.)
5. Cecil Ann urges this court to take judicial notice in the appeal of documents appended to her habeas petition which assertedly establish that Blake is an Indian child. Because the record does not show that counsel knew or should have known that Blake is an Indian child, whether he in fact is such a child is immaterial to the issue of counsel's effectiveness. Consequently, we need not decide whether Evidence Code section 452, subdivisions (d) and (h), authorize this court to take judicial notice of the appended documents, as Cecil Ann maintains.
6. Unless otherwise indicated, all further statutory citations are to title 25, United States Code Annotated.
7. An “Indian child” means “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (§ 1903, subd. (4).)
8. “Indian custodian” is defined as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.” (§ 1903, subd. (6).)
ANDERSON, Presiding Justice.
POCHE and SABRAW, JJ., concur.