In re Cody R.

Filed 12/17/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re CODY R., a Person Coming
Under the Juvenile Court Law.
D073527
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES AGENCY,
(Super. Ct. No. J512459F)
Plaintiff and Respondent,

v.

SHAUNA R.,

Defendant and Appellant.
D074328
In re SHAUNA R.
on Habeas Corpus. (Super. Ct. No. J512459F)

CONSOLIDATED appeal from an order of the Superior Court of San Diego

County, Kimberlee A. Lagotta, Judge, and petition for writ of habeas corpus. Appeal

dismissed; Petition denied.

Shauna R. appeals from an order terminating parental rights to her son, Cody R.,

under Welfare and Institutions Code section 366.26. 1 She contends the order terminating

parental rights must be reversed because the San Diego County Health and Human

1 Further unspecified statutory references are to the Welfare and Institutions Code.
Services Agency (Agency) did not give preferential consideration to relatives when

determining Cody's placement. After considering the parties' supplemental briefing on

the issue of standing, we conclude that Shauna does not have standing to appeal the order

terminating parental rights on the ground the Agency did not give preferential placement

consideration to Cody's relatives. We therefore dismiss the appeal.

Shauna has also filed a petition for writ of habeas corpus asking this court to

vacate the dispositional findings and orders and the order terminating parental rights. In

an affidavit, Shauna asserts that prior to the June 2017 dispositional hearing she identified

several family members who wanted Cody to live with them but the social worker told

her that Cody would not, and could not, be moved from his foster home. Shauna argues

that in placing Cody in a concurrent planning home instead of with a relative, the social

worker misstated and misapplied the law governing the relative placement preference.

After receiving an informal response from the Agency, we issued an order to show

cause. The parties have filed a return and a traverse, which we have now considered

along with briefing and a review of the exhibits. We conclude that a petition for writ of

habeas corpus may be filed in dependency cases only in limited circumstances not

present here. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Cody R., who is now five years old, is a son of Shauna R. and C.R. (together,

parents). In August 2013, the Agency detained six-week-old Cody and four of his older

siblings in protective custody due to severe neglect. The parents were convicted on

related criminal charges of willful cruelty to a child. Shauna and C.R. regained custody

2
of the children in January and February 2015. The juvenile court terminated jurisdiction

in September 2015.

Shortly before Christmas 2016, the children's former court-appointed special

advocate (CASA) visited the family, which by then included another son and an infant

daughter. The CASA observed that three-year-old Cody, who had been a "chunky" baby,

was severely underweight, weak and lethargic. His extremities were purple. The CASA,

a former paramedic, said Cody appeared to be near death and advised the parents to take

him to the emergency room.

Cody was barely responsive when he arrived at the hospital several hours later.

He was significantly malnourished. At three-and-a-half, Cody weighed 21.6 pounds,

which was less than he had weighed at his last doctor appointment shortly after his

second birthday. Bruises and abrasions on Cody's face, back, and legs were concerning

for nonaccidental trauma.

During his hospitalization, Cody gained almost five pounds in less than five days.

There was no other cause of failure to thrive other than malnutrition and neglect. Cody

was severely neurologically delayed due to psychosocial and nutritional deprivation.

Physicians characterized the parents' treatment of Cody as "essentially starvation" and

advised the social worker that Cody would be at risk of death if returned home.

In foster care, Cody displayed extreme food seeking behaviors, which was

"textbook behavior" for children who had been food deprived. Cody was provided

services including Failure to Thrive Clinic, Speech Therapy, Physical Therapy, Trauma

Therapy, and developmental support services.

3
 The Agency detained Cody's siblings in protective custody in March 2017, when

Shauna and C.R. were arrested on charges of felony child cruelty and held without bail. 2

Cody's baby sister was placed with him in foster care. The older siblings were very

guarded when first removed from their parents. They later disclosed the parents said the

entire family would go to jail if they talked about what had happened in the home.

The eldest sibling, C.R., Jr., said the parents did not feed Cody and would make

him watch while the others ate. The parents locked the kitchen cabinets to prevent Cody

from eating at night. C.R., Jr. explained that he and his siblings left food on the ground

for Cody but the mice would eat it. Cody was so hungry he ate his feces from his diaper.

He was not allowed to play with toys. He was not allowed out of the bedroom and had to

stay in bed all day. C.R., Jr. said the parents made him stay home with Cody to avoid

having Cody be seen in public. The three oldest children reported that the parents hit all

the children, leaving marks and bruises, and encouraged them to hit each other and Cody.

On June 2, 2017, at the contested jurisdictional and disposition hearing, the

juvenile court found that Cody was a child described by section 300, subdivisions (b)

[neglect] and (e) [severe physical abuse of a child under five years of age]. None of the

parties raised the issue of Cody's placement with a relative. The court removed Cody

from the care and custody of his parents, bypassed reunification services, and set a

section 366.26 hearing. The court advised the parents of their right to appeal but failed to

2 In a plea deal, the parents pleaded guilty to felony child abuse and were sentenced
to four years in state prison. The district attorney obtained an order prohibiting the
parents from having any contact with Cody for three years, and later sought a 10-year
restraining order.

4
inform them that proper review of an order setting a section 366.26 hearing was by way

of writ under California Rules of Court, rule 8.452. 3

Shauna nevertheless signed a notice of intent to file a writ petition on June 2,

which was filed on June 7. After review, however, her attorney notified Shauna and this

court that a writ petition under rule 8.452 would not be filed because there were no viable

issues for review. This court dismissed the matter on July 10, 2017.

Cody's Placement History and Search for Relatives Interested in Placement

Cody was hospitalized from December 24 to 29, 2016. At a team decision

meeting in January 2017, Shauna and C.R. said there were no relatives available to care

for Cody. The parents agreed to place him with a nonrelative extended family member

(NREFM) under a voluntary safety plan and asked the Agency to consider placing Cody

with their employers and friends, the B.'s. The Agency began an evaluation of the B.'s

home, but the B.'s withdrew their names from consideration for placement prior to the

dispositional hearing.

The Agency filed a section 300 petition on January 20 and detained him with the

NREFM. On January 27, the social worker placed Cody in a concurrent family home

with his current caregivers, who had an approved adoption home study.

During Cody's hospitalization, Aunt B., who was married to Shauna's brother

(Uncle N.), visited Cody while a social worker was present. Aunt B. was reluctant to get

involved in Cody's case. She told the social worker she did not understand how the

parents could have ignored Cody's condition. At a court hearing, Shauna confronted

3 Further unspecified rule references are to the California Rules of Court.

5
Aunt B. and demanded she retract her statement. When Aunt B. refused, Shauna said,

"[Aunt B. is] never to see Cody again."

On February 2, the social worker sent letters to nine relatives, including Uncle D.

and Uncle N., asking if they were interested in caring for Cody. The letter advised the

relatives that if they did not come forward prior to the dispositional hearing, "the

opportunities for placement in relative care may diminish as the child's case progresses."

In March, the social worker contacted Shauna to review the Agency's dispositional

recommendations to bypass services and set a section 366.26 hearing. Shauna did not

want to meet with the social worker and did not provide any concurrent placement

recommendations for Cody.

On May 5, the social worker met with Cody's maternal grandmother and

grandfather, Aunt B., and Aunt V., who were concerned about the children's welfare.

The family advised against ever returning the children to Shauna's care. The

grandmother said Shauna's behavioral issues dated back to early childhood. Shauna had

been diagnosed with borderline personality disorder with narcissism and rage. The

family was afraid of her and had distanced themselves from her. Shauna had a history of

filing false accusations of abuse against family members. The day after Uncle D. and his

girlfriend met with the social worker, child welfare services received a report alleging

they did not have electricity in the home, which was not true.

After the case was referred to a section 366.26 hearing, a new social worker was

assigned to the case. In August, in response to Shauna's inquiry why the case was in

adoptions while there was an appeal pending, the social worker said Shauna's

6
writ petition had been dismissed on July 10 and advised her to contact her attorney. The

social worker explained that the Agency had the authority to make placement decisions

on Cody's behalf. They had tried to identify relatives and NREFMs for placement but did

not find anyone willing to provide long-term care for Cody.

In response to Shauna's further telephone calls and letters, the social worker sent

another email, stating in relevant part: "Cody is a dependent of the Court and because of

that you no longer have a say in where your son is placed. The Agency many times asks

parents for ideas of family members or family friends . . . . This does not mean the

parents are making the decision of where your [sic] child is placed but rather giving

ideas of individuals that can be assessed if they are able to provide a safe home and

protect the children from further abuse or neglect. . . . The decision for placement is

always with the Agency and/or the Courts. Cody is in a home where he is thriving. . . .

We have no intention of moving Cody from this home."

Section 366.26 Hearing

The section 366.26 hearing was held on December 13, 2017. The social worker

reported that Cody had been living with his current caregivers since January 2017. Cody

looked to his caregivers to meet his emotional and physical needs. He was healthy and

was starting to reach age-related developmental expectations. His caregivers wanted to

adopt him and had an approved home study. Cody referred to his foster parents as

"mommy and daddy." When asked to identify his family, Cody described his foster

parents, his baby sister, and two dogs.

7
 Shauna testified that she and Cody had a strong bond. Before she was arrested,

Cody enjoyed his visits with the family. During visits, they played, blew bubbles, and

played ball. When Cody left, he would hug them and say, "I love you."

C.R. did not testify. The parents argued the beneficial parent/child and sibling

bond exceptions to termination of parental rights existed. Neither parent raised any

issues concerning Cody's placement.

The juvenile court observed that Cody, who was then four years old, had spent

only one year in the care of his parents. During that year, the evidence showed that his

parents tortured and nearly starved him to death. The court characterized Cody's

relationship with his parents as a relationship of "terror, trauma, and fear" and found there

were no exceptions to termination of parental rights. The court terminated parental rights

and designated Cody's caregivers as his prospective adoptive parents.

DISCUSSION

I. The Appeal

A. Overview

Shauna argues the order terminating parental rights to Cody must be reversed

because the Agency did not favorably consider any of Cody's relatives for placement

throughout the proceedings, culminating with the section 366.26 hearing. She argues the

Agency's failure to do so was prejudicial because the juvenile court may have placed

Cody with relatives had it properly applied the relative placement preference. Shauna

does not advance any claim that the juvenile court erred in terminating her parental rights

8
or that the outcome of the section 366.26 hearing would have been different had Cody

been placed with relatives.

We directed the parties to file letter briefs addressing the issue of whether Shauna

has standing to appeal the order terminating parental rights in view of In re K.C. (2011)

52 Cal.4th 231 (K.C.) and In re A.K. (2017) 12 Cal.App.5th 492 (A.K.).

Shauna contends she has standing because at trial she sought to preserve her

parental rights and timely appealed from the adverse judgment. She contends the

challenge to the placement orders advances her argument against terminating parental

rights. Shauna posits that reunification with Cody remains a possibility because she did

not receive an advisement of her right to file a writ petition challenging the dispositional

orders and findings, including placement, and her challenges to Cody's placement predate

the dispositional hearing at which the court bypassed reunification services. She asserts

that her inability to challenge the dispositional findings and orders preserves her standing

to challenge her son's placement at the section 366.26 hearing.

The Agency contends this court should dismiss Shauna's appeal for lack of

standing. The Agency observes that Shauna has not had any contact with Cody since

March 2017 and is prohibited from having any contact with him until at least 2020. She

has not raised any challenges to the juvenile court's findings that Cody was likely to be

adopted and that termination of parental rights would not be detrimental to him. The

Agency argues that reversal of the placement order would not advance Shauna's interest

in avoiding termination of parental rights.

B. Shauna Does Not Have Standing to Appeal

9
 We reject Shauna's argument she has standing to appeal because the juvenile court

did not advise her of the right to challenge the jurisdictional and dispositional findings

and orders by writ. (See generally In re Cathina W. (1998) 68 Cal.App.4th 716, 722

[failure to advise of right to file a writ constituted good cause to allow parent to raise

issues from the referral hearing on appeal from termination of parental rights].) Although

the required writ advisement does not appear in the minute order, 4 Shauna signed a

notice of intent to file a writ petition the day of the jurisdictional and dispositional

hearing. The record shows she had actual notice of her right to file a writ and did in fact

timely file the notice of intent to challenge the dispositional findings and orders. Any

error by the court was therefore harmless.

In addition, Shauna's argument that reunification with Cody remains a possibility

is frivolous. Any placement error at the dispositional hearing would not have affected the

order bypassing reunification services and setting a section 366.26 hearing. The

Legislature requires the juvenile court to bypass services in cases like this one involving

a jurisdictional finding that the parent has inflicted severe physical harm on her child

unless the court finds, by clear and convincing evidence, that reunification is in the

child's best interest. (§§ 300, subd. (e), 361.5, subds. (b)(6)(C), (c)(2) & (f).) Because

the evidence clearly showed that Cody would be at risk of serious physical harm or death

if returned to Shauna's custody, the court did not make such a best interest finding. Thus,

4 The juvenile court incorrectly advised the parents they had the right to appeal and
if they decided to appeal, they were required to file a notice of appeal within 60 days.
Review of an order setting a section 366.26 hearing is by writ. (Rule 8.452.) A notice of
intent must be filed within a specified time period, usually within 7 days after the date of
the order setting hearing. (See rule 8.450(e).)

10
the court would have bypassed services and set a section 366.26 hearing whether Cody

was placed with a relative or in foster care.

"Whether a person has standing to raise a particular issue on appeal depends upon

whether the person's rights were injuriously affected by the judgment or order appealed

from. [Citation.] A person does not have standing to urge errors on appeal that affect

only the interests of others. [Citation.] Accordingly, a parent is precluded from raising

issues on appeal which do not affect his or her own rights." (A.K., supra, 12 Cal.App.5th

at p. 499.) The California Supreme Court has held that "[a] parent's appeal from a

judgment terminating parental rights confers standing to appeal an order concerning the

dependent child's placement only if the placement order's reversal advances the parent's

argument against terminating parental rights." (K.C., supra, 52 Cal.4th at p. 238.) 5

Shauna contends her argument concerning Cody's placement are challenges that

advance her argument against terminating parental rights. She contends that, unlike the

5 In A.K., the father challenged the termination order on the ground that the juvenile
court failed to assess the grandmother's request for the child's placement. The reviewing
court held that that father did not have standing because he could not establish that his
rights and interest in reunification were injuriously affected by any failure to consider the
grandmother's request for placement at the 366.26 hearing. (A.K., supra, 12 Cal.App.5th
at p. 499.)
In holding that a parent lacks standing to appeal an order terminating parental
rights where his rights and interest in reunification were not injuriously affected by the
failure to consider relative placement, A.K. arguably disregards the California Supreme
Court's holding that a parent has standing to appeal where he can show that the reversal
of the placement order advances the parent's argument against terminating parental
rights. (K.C., supra, 52 Cal.4th at p. 238, italics added.) A parent's interest in
reunification is distinct from her interest in avoiding termination of parental rights. We
are thus disinclined to read A.K. as stating a broad rule that a parent whose reunification
services have been terminated has no standing to appeal placement orders.

11
parent in K.C., she argued at the section 366.26 hearing that the beneficial parent/child

exception existed. Shauna overlooks the fact she does not challenge on appeal the court's

finding there were no exceptions to termination of parental rights. She alludes to the

possibility that if Cody had been placed in the care of a relative, the relative would not

have been able to adopt and the court would have ordered a permanency plan of

guardianship, thus preserving Shauna's parental rights. Speculation about a hypothetical

situation is not sufficient to support standing. (Great Lakes Construction, Inc. v. Burman

(2010) 186 Cal.App.4th 1347, 1359 [a highly speculative interest does not meet the

standing requirements].)

Even if Shauna had standing to appeal the order terminating parental rights on the

ground the Agency did not meet its statutory obligation to give preferential treatment to

relatives, we would reject her claim. The record shows that in January 2017, Shauna and

C.R. told the social worker there were no relatives available to care for Cody. They

agreed to place him with a nonrelative extended family member (NREFM) and asked the

Agency to evaluate their friends, the B.'s, for placement. The Agency agreed, but the B.'s

withdrew their names from consideration for placement prior to the dispositional hearing.

The Agency cannot be faulted for the B.'s decision.

The record belies Shauna's claim that Aunt B., who was married to Shauna's

brother Uncle N., came forward to ask for Cody's placement before the dispositional

hearing. During Cody's hospitalization Aunt B. appeared reluctant to become involved in

Cody's case. Instead of promoting placement with Aunt B., Shauna became angry and

said Aunt B. would never see Cody again.

12
 On January 27, 2017, the social worker removed Cody from the NREFM and

placed him in a concurrent family home with his current caregivers. The record permits

the reasonable inference the Agency did so because the NREFM was not able to offer

Cody a permanent placement.

In February, the social worker sent letters to nine relatives, including Uncle D. and

Uncle N., asking if they were interested in caring for Cody. The record supports the

reasonable inference that Uncle D. expressed an interest in Cody's placement because the

social worker met with him and his girlfriend. However, the day after the meeting child

welfare services received a report alleging Uncle D. did not have electricity in his home,

which was not true. According to Shauna's family, she had a history of making false

claims of abuse against her siblings and their spouses. The family met with the social

worker, who was continuing to look for relative placement for Cody. Instead of

expressing an interest in caring for Cody, family members said they had distanced

themselves from Shauna because of her destructive behaviors and warned against

returning any of the children to her care. Notably, the relatives did not care for Cody

during his prior dependency case. Cody was in a foster care home from age six weeks to

the day before his first birthday. That placement failed because Shauna became very

aggressive and threatened to burn down the foster care home.

In March, the social worker contacted Shauna, who refused to meet with her or to

provide any recommendations for Cody's placement. Shauna did not raise the issue of

placing Cody with a relative at any time during Cody's dependency proceedings. Thus,

the record does not support her claims there were relatives who were willing to provide a

13
home to Cody and the Agency failed to apply the relative placement preference. In not

bringing the placement issue to the juvenile court's attention at any time during Cody's

dependency proceedings, Shauna has forfeited the issue on appeal. (In re Dakota H.

(2005) 132 Cal.App.4th 212, 221-222 [a party forfeits the right to claim error as grounds

for reversal on appeal when she fails to raise the objection in the trial court].)

Shauna's appeal is without merit.

II. Writ of Habeas Corpus

A. Overview

Shauna contends a petition for writ of habeas corpus is the proper vehicle to

present claims of error supported by evidence not included in the appellate record. She

maintains that her petition for writ of habeas corpus (petition) is her first chance to

present this claim of error because she was not afforded the opportunity to prepare and

file a writ petition after referral to the section 366.26 hearing at the dispositional hearing.

Shauna states if she could have filed a writ petition after the dispositional hearing, she

would have argued the social worker misled her about Cody's placement, and misstated

and misapplied the law governing the relative placement preference.

Shauna asserts that prior to the June 2017 dispositional hearing, she identified

several family members who wanted Cody to live with them, including Cody's uncle

(Uncle D.), his aunt by marriage (Aunt B.), and his great-grandmother (Grandma T.).

14
She asks this court to vacate the pertinent dispositional findings and orders, 6 and the

order terminating her parental rights.

We issued an order to show cause to address an important and novel issue of law:

whether habeas corpus may be utilized to present evidence to an appellate court that was

not before the lower court in a dependency proceeding. (See In re Robbins (1998)

18 Cal.4th 770, 779.) We hold that habeas corpus in dependency proceedings is limited

to claims of wrongful withholding of custody of the child, including lack of jurisdiction,

and claims of ineffective assistance of counsel. We disapprove the use of a petition for

writ of habeas corpus in dependency cases to challenge a dependent child's placement.

Section 361.3 or section 388 provides an adequate and far more timely means to bring

new evidence concerning the child's placement to the attention of the juvenile court.

B. Habeas Corpus Is An Extraordinary Remedy of Limited Scope

In dependency proceedings, habeas corpus has long been limited to claims of

(1) entitlement to physical custody of a child where custody has been wrongfully

withheld, or (2) ineffective assistance of counsel. (Adoption of Alexander S. (1988)

44 Cal.3d 857, 866 (Alexander S.); In re Richard M. (1975) 14 Cal.3d 783, 789;

In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658-1659, 1667.) Shauna contends habeas

corpus should also be an appropriate vehicle to bring to the appellate court's attention

6 As we discussed, ante, at p. 11, any placement error at the dispositional hearing
would not have affected the order bypassing reunification services and setting a
section 366.26 hearing, and therefore complete reversal of the dispositional findings and
orders is not an appropriate remedy.

15
evidence that was not before the trial court. We address each of these three potential

bases for habeas relief.

1. Right to Physical Custody

There are various subcategories of entitlement to physical custody of a child.

(Alexander S., supra, 44 Cal.3d at p. 866.) A writ of habeas corpus may be used to

enforce an existing right to physical custody established by prior order or to determine

physical custody in the absence of any previous custody order. A parent may bring a

habeas corpus action to protect a child from imminent danger. A natural parent lacking

physical custody may bring an original action in habeas corpus where the parent's consent

to an adoption was required but not obtained. Finally, habeas corpus may be brought to

collaterally attack a prior child custody order where the court issuing the prior order

lacked jurisdiction. (Alexander S., at pp. 866-867, citing In re Richard M., supra,

14 Cal.3d 783; In re Croze (1956) 145 Cal.App.2d 492, 495; In re Wren (1957) 48 Cal.2d

159, 163; In re Dowell (1935) 4 Cal.App.2d 688, 689; In re Reyna (1976) 55 Cal.App.3d

288, 294; Ex Parte Barr (1952) 39 Cal.2d 25, 27-28.)

Shauna claims a petition for writ of habeas corpus is appropriate because the state

placed Cody with foster parents who wish to adopt him and in doing so, violated the

statutory preference for relative placement. She does not assert under any theory that she

is being wrongfully denied her right to physical custody of Cody, who was removed from

her care on an unchallenged finding of substantial detriment. Thus, this case does not fall

within any of the subcategories listed in Alexander S. and Shauna is not entitled to assert

a claim of habeas corpus on this ground. We decline to create a new subcategory to

16
allow a parent to assert that custody was wrongfully withheld from the child's relative. 7

As Shauna acknowledges, her claim concerns the application of section 361.3, which is a

statutory issue, not a constitutional one. Habeas corpus extends to correct errors of a

fundamental jurisdictional or constitutional type only. (In re Harris (1993) 5 Cal.4th

813, 828; cf. In re Arturo A. (1992) 8 Cal.App.4th 229, 238 [as a general rule, to

determine whether a claim for reversal may be based on ineffective assistance of counsel,

one must review the issue in litigation to determine whether the right threatened is

fundamental].)

2. Ineffective Assistance of Counsel

Nor do we believe Shauna has stated a claim to relief based on ineffective

assistance of counsel, the other accepted use of habeas corpus in a dependency

proceeding. It is well settled that a litigant seeking habeas relief must " 'state fully and

with particularity the facts on which relief is sought.' " (In re Reno (2012) 55 Cal.4th

428, 482 (Reno), quoting People v. Duvall, supra, 9 Cal.4th at p. 474.) The petitioner

bears a heavy burden initially to plead sufficient grounds for relief. (In re Martinez

(2009) 46 Cal.4th 945, 955.) "[T]his pleading requirement logically applies to explaining

why a specific claim is cognizable in the first place." (Reno, at p. 482.) To assert a claim

of ineffective assistance, a petitioner must allege that the performance of trial or appellate

counsel fell below an objective standard of reasonableness under prevailing professional

norms and was therefore deficient. He or she must also claim there is a reasonable

7 See generally, Moore v. City of East Cleveland, Ohio (1977) 431 U.S. 494, 503-
505 [recognizing that removal of a child from a relative's care may merit constitutional
protection].)

17
probability that, but for counsel's errors, the result of the proceeding would have been

different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v.

Dowdell (2014) 227 Cal.App.4th 1388, 1407-1408.)

Shauna makes no explicit assertion that she was denied effective assistance of

counsel, and we do not think her petition can be fairly read as offering any cognizable

habeas claim on that ground. Although the Agency purports to respond to what it

characterizes as Shauna's "vague assertions of ineffective assistance of counsel," it refers

to a single citation in her petition: "In re Arturo A. (1992) 8 Cal.App.4th 229, 243 [proof

of ineffective assistance of counsel commonly goes beyond the existing record]."

Moreover, when the Agency's response sought to offer affidavits from Shauna's trial

counsel and trial counsel's supervising attorney disclosing confidential communications

from Shauna, allegedly in response to her claims of ineffective assistance, Shauna

objected, moved to strike the affidavits, and denied making an ineffective assistance

claim. We take her at her word. 8

3. Evidence Outside the Appellate Record

Finally, we examine Shauna's argument that a petition for habeas corpus may be

used to present a claim of error that is supported, in pertinent part, by evidence not

included in the appellate record. In other words, Shauna seeks to use a habeas petition to

present a claim in this court that she did not present in juvenile court while represented by

competent counsel. In support of her theory, Shauna cites cases referring to the need to

present proof that goes beyond the existing appellate record. However, those cases

8 We also grant her motion to strike the affidavits.

18
concern claims of ineffective assistance of counsel, which as we have indicated is not

presented here. (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 126, superseded by

statute on another point, as noted in In re Mario C. (1990) 226 Cal.App.3 122, 134;

In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1101; cf. In re Arturo A., supra, 8

Cal.App.4th, at p. 243.) Shauna has not cited, and we have not independently located,

any authority permitting habeas in an adoption-related action that does not involve a

claim of wrongfully withheld custody or ineffective assistance of counsel.

" '[H]abeas corpus is an extraordinary, limited remedy against a presumptively fair

and valid final judgment.' " (Reno, supra, 55 Cal.4th at p. 450.) "This limited nature of

the writ of habeas corpus is appropriate because use of the writ tends to undermine

society's legitimate interest in the finality of its criminal judgments, a point this court has

emphasized many times." (Id. at p. 451.) The California Supreme Court has applied this

principle to adoption-related cases. (Alexander S., supra, 44 Cal.3d at pp. 867-868 ["Out

of concern for the welfare of children in adoption actions, we hold that habeas corpus

may not be used to collaterally attack a final nonmodifiable judgment in an adoption-

related action where the trial court had jurisdiction to render the final judgment"]; accord,

Lehman v. Lycoming County Children's Services Agency (1982) 458 U.S. 502, 513-514

[federal habeas in child custody disputes prolongs uncertainty for children and is

disallowed].)

More importantly in this context, a writ of habeas corpus is not available where

there is an alternative remedy. (Villery v. Department of Corrections & Rehabilitation

(2016) 246 Cal.App.4th 407, 415-416.) Generally, because of the ongoing nature of

19
dependency cases, there is an alternative means to bring new evidence to the timely

attention of the juvenile court. Section 388 is often used in dependency proceedings to

seek modification of a prior placement order. (See also Isabella G. (2016)

246 Cal.App.4th 708, 723 [where the agency disregarded a relative's timely request for

placement, the relative is entitled to a § 361.3 hearing without having to file a § 388

petition].)

Shauna claims that if she had the prior opportunity to file a writ petition under

rule 8.452, she would have raised the issue of relative placement and therefore her current

petition for writ of habeas corpus is properly before this court. Her claim is without

merit. Shauna signed a notice of intent to file a writ petition on the day of the

dispositional hearing. In the absence of any claim of ineffective assistance of counsel, we

presume counsel competently performed her duties. Even were we to assume, as Shauna

argues, she did not receive either the July 7, 2017 letter from her attorney stating there

were no issues for writ review or the July 10, 2017 letter from this court dismissing the

writ petition under rule 8.452, Shauna was informed of the dismissal of her appellate

proceedings on August 10, 2017. The section 366.26 hearing was not heard until

December 13, 2017. She had ample time prior to the section 366.26 hearing to bring any

claim of new evidence or change in circumstance to the attention of the juvenile court by

filing a section 388 petition for modification of any placement order. Similarly, Shauna

cannot use a petition for writ of habeas corpus to submit evidence to this court that could

have been, but was not, presented by competent counsel to the juvenile court at the

section 366.26 hearing. (Alexander S., supra, 44 Cal.3d at pp. 867-868 [habeas corpus

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may not be used to collaterally attack a final nonmodifiable judgment in an adoption-

related action where the trial court had jurisdiction to render the final judgment].)

DISPOSITION

The appeal is dismissed. The petition for writ of habeas corpus is denied.

DATO, J.

WE CONCUR:

IRION, Acting P. J.

GUERRERO, J.

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