COURT OF APPEAL OF THE STATE OF CALIFORNIA

	THIRD APPELLATE DISTRICT

                                                                  		Case No.	 	
In re 							Related Appeal Pending Nos. 	
S J., et al.						[ ] and [ ]
Persons Coming Under the	
Juvenile Court Law.                           		[ ] County Superior Court
D.C., 							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 Code 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 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 parent-child 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
I.	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.
	
[Continue with points and authorities similar to AOB with reference to declarations]