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Name: In re Jackson W.
Case #: D055622
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/29/2010

Parent could raise ineffective assistance of counsel issue by way of 388 petition, but failed to show that outcome would have been different. Mother appealed from an order summarily denying her 388 petition which alleged ineffective assistance of counsel at an earlier stage in the proceedings. Mother contended that the filing of a section 388 petition was the proper procedure to trigger a hearing on the competency of counsel because the inherent “escape mechanism” of section 388 allows the court to modify any prior order for any reason. The appellate court agreed, but advised that the proper way to challenge an order because of ineffective assistance of counsel is by way of a petition for writ of habeas corpus. However, because mother in this case chose to raise it by way of 388 petition, the court addressed the summary denial, holding that it was proper. A parent, after proper advisement, may voluntarily waive the right to be represented by appointed counsel meeting the definition of “competent counsel.” Once that right is waived, the parent is precluded from complaining about counsel’s dependency qualifications. Further, mother made no showing that there would have been a different outcome had counsel provided what she believed was effective representation. If the court had entertained her claims on habeas corpus, the result would have been the same.