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dependency articles

 

Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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XV. Issues of Ineffective Assistance of Counsel (IAC) That Can Be Raised on Appeal or by Petition for Writ of Habeas Corpus.

A.  All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel.

B. What showing must the appellant or petitioner make on the IAC claim?.

C. At what stages have ineffective assistance of counsel arguments been raised?

XV. Issues of Ineffective Assistance of Counsel (IAC) That Can Be Raised on Appeal or by Petition for Writ of Habeas Corpus.

  1. All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel. (Welf. & Inst. Code, § 317.5; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667‑1668.)
    1. This statutory right has been interpreted in substantially the same manner as the constitutional right to the effective assistance of counsel. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812.)
  2. What showing must the appellant or petitioner make on the IAC claim?
    1. A party must make a two‑part showing: first that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law, and second that the error was prejudicial. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.) To establish prejudice, the party must demonstrate that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Ibid.)
      1. Furthermore, when making such a claim on direct appeal, rather than by petition for writ of habeas corpus, a parent must show that there simply could be no satisfactory explanation for trial counsel's action or inaction. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254.)
  3. At what stages have ineffective assistance of counsel arguments been raised?
    1. Where trial counsel was ineffective in not pointing out that the department had failed to sustain its burden of either pleading or proving an essential element of its jurisdictional petition, and counsel's misstatement of the law was on the record, the error could be brought on direct appeal. The error could be asserted even from the order terminating parental rights. (In re S. D. (2002) 99 Cal.App.4th 1068, 1083 .)
      1. To the contrary is In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160: "[i]f a parent, for whatever reason, has failed to timely and appropriately raise a claim about the existence or quality of counsel received at a proceeding antedating the .26 hearing, we will apply the waiver rule to foreclose the parent from raising such objection on appeal from the termination order."
    2. Where the juvenile court has ordered parental rights terminated, a parent has the right to seek review of claims of incompetent assistance of counsel by a petition for writ of habeas corpus. (Compare In re Darlice C. (2003) 105 Cal.App.4th 459, 463-467, with In re Meranda P. (1997) 56 Cal.App.4th 1143.)

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