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Name: In re Ernesto R.
Case #: B255116
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/01/2014

Trial counsel was not ineffective for failing to file a 388 petition prior to termination of parental rights where it was not reasonably likely that the petition would have been granted. Mother appealed an order terminating her parental rights to her son, after services had been bypassed due to her chronic substance abuse. Mother contended on appeal that she was denied effective assistance of counsel because her trial attorney failed to file a section 388 petition showing a change of circumstances, including mother’s involvement in treatment programs, negative drug tests, housing, and regular visits. The appellate court rejected mother’s argument and affirmed. Even if there had been a change in circumstances, it was not shown that reunification services and liberalized visitation would be in the minor’s best interests. The minor was bonded to his foster parents, who were committed to adopting him. It was not reasonably probable that a 388 petition, had it been filed, would have been granted. The filing of a petition would have been an exercise in futility and therefore counsel’s failure to file one did not demonstrate ineffective assistance.