Trinity S.
Filed
6/7/13 In re Trinity S. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re TRINITY S., a Person
Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Plaintiff and
Respondent,
v.
DANA S.,
Defendant and
Appellant.
F065737
(Super.
Ct. No. JD125233)
APPEAL from
orders of the Superior Court of
Laloni A.
Montgomery, under appointment by the Court of Appeal, for Defendant and
Appellant.
Theresa A.
Goldner, County Counsel, and Elizabeth A. Giesick, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Dana S.,
the paternal grandmother and former legal guardian of Trinity S., appeals from
the juvenile court’s orders made at the 18-month review hearing terminating
Dana’s reunification services and the
guardianship, and setting a review hearing under section 366.3. (Welf. & Inst. Code, §§ 366.22, 728.)
of detriment if Trinity were returned to her care and that she was provided
reasonable services, arguing there is insufficient
evidence of both and the juvenile court failed to state a factual basis for
its detriment finding. Dana further
contends the juvenile court erred when, after terminating her reunification
services and guardianship, it set a section 366.3 hearing instead of a section
366.26 hearing, and her trial attorney rendered
FACTUAL AND PROCEDURAL BACKGROUND
Dana and
her husband, Ralph S., obtained legal guardianship of Trinity through the
probate court in May 2003, when Trinity was two years old. Trinity’s mother is K.B. (mother); her
father, Ralph S. II (father), is Dana and Ralph’s son.
According to mother, she allowed Trinity and her
half-sister, K.C., to live with Dana and Ralph because she and father, to whom
she was married at the time, were too unstable to care for the girls due to
drug use. Mother divorced father in
2005. By 2010, Ralph had been convicted
and sentenced to three years in prison for molesting K.C.
and mother’s three-year-old son, while Trinity remained with Dana. Father was living with his girlfriend in a
hotel room.
In October 2010, police officers
were dispatched to Dana’s home to check on the welfare of a juvenile. Ten-year-old Trinity, who the officers found
in a bedroom, was taken into protective custody after they found a
methamphetamine smoking pipe containing methamphetamine in another bedroom and
arrested Dana for possession of methamphetamine and drug paraphernalia. Dana admitted the pipe was hers and that she
occasionally used methamphetamine. A man
and another woman were also at the home visiting Dana. The man was arrested on an outstanding
warrant. Dana told the officers she did
not want these two, who she described as “drug users,†staying at her house.
A social
worker interviewed Trinity. Trinity said
she sometimes did not feel safe at Dana’s house, and especially did not feel
safe when Dana got mad and threw things.
The month before, Dana got mad and threw a “glass of ice tea,†which hit
Trinity’s bedroom door; Trinity was inside her bedroom with the door
closed. While Dana had never thrown an
object directly at Trinity, she would get mad and throw things “a few times a
week.†Trinity said she would go into
her bedroom and shut the door when Dana started throwing things. Trinity felt Dana had an anger issue.
When the social worker interviewed
Dana, she was very distraught, panicky, emotional, and mentioned “dyingâ€
several times. Dana admitted the man at
the house was a methamphetamine user who she met through her son. Since Ralph’s incarceration, Dana had been
unable to pay the mortgage, the house was being foreclosed, and her friends
would not have anything to do with her.
Dana claimed that “druggy’s†were the only people who would help her,
but they “act like they care and then they turn around and steal†from
her. Father and his girlfriend stayed
with her and tried to help out, but they were methamphetamine users and the
girlfriend stole things from Dana. Dana
said she argued with father all the time; during one argument he put his
forehead through her door.
Dana started using methamphetamine
in April or May 2010; she said used “maybe every couple of weeks†when Trinity
was either in bed or at school. Dana had
a medical marijuana card; she smoked “a bowl†of marijuana every couple of days
to help her with nausea from “Celiac’s disease†and gastric bypass
surgery. Dana admitted being abused as a
kid and that she takes “whatever is handy.â€
She was diagnosed with depression “years ago,†for which she had been
prescribed medication, but she was not taking it. Dana also admitted often getting angry and
throwing objects, which she attributed to “mood swings.†The social worker believed Dana was extremely
emotionally unstable.
The Kern County Department of Human
Services (Department) filed a dependency petition alleging Trinity came within
the provisions of section 300, subdivisions (b) and (g), and Trinity was
detained. A social worker interviewed
father, who said that he knew Dana was using drugs due to the “company she was
keeping,†and stated he got into a fight with Dana because he confronted her
about her drug use, which she denied. He
felt Dana had developed mental health issues since she started using drugs and
Ralph went to jail; she was always saying she was going to “kill herself†and
seemed to be “breaking down.†His aunt
had visited Dana recently and had her “5150’d.â€
Father confirmed Dana threw things when she got mad. Father denied that either he or his
girlfriend used drugs.
Following the detention hearing,
the social worker reviewed with Dana the initial case plan, which consisted of
substance abuse counseling, random drug testing and a mental health
assessment/treatment. Dana subsequently
enrolled in substance abuse counseling.
Dana submitted to two drug tests, one positive for methamphetamine and
one pending. Following her arrest, Dana
was court-ordered to complete a drug diversion program. Trinity was placed with mother, who agreed to
take her until Dana could reunify with her.
An uncontested jurisdictional
hearing was held on November 17, 2010.
Dana, who was not present because she was attending a class, waived her
rights and submitted on the social worker’s reports. The juvenile court dismissed the section 300,
subdivision (g) allegation at the Department’s request and found true the
allegations under section 300, subdivision (b) that there was a substantial
risk Trinity would suffer serious physical harm or illness by Dana’s inability
to provide regular care for Trinity due to Dana’s substance abuse and mental
health issues.
On November 30, 2010, Dana appeared
at the group meeting at the outpatient substance abuse program and seemed to be
under the influence; Dana admitted she attempted to commit suicide the night
before by overdosing on Klonopin. Dana
refused an ambulance, but the male who was at her house when Trinity was
detained picked her up and took her to the hospital, where doctors confirmed
the suicide attempt. Dana was dropped
from the substance abuse program due to noncompliance with program
requirements. Dana, however, enrolled in
another substance abuse treatment program.
Dana was drug testing; since October 26, 2010, she had four negative
drug tests, one presumptive positive due to failure to test, and the last a
suspicious test. Dana was visiting
Trinity once a week for one hour; she had missed two visits, but otherwise the
visits were going well. Dana had been in
therapy since August 2006, when she sought help for anxiety at work and
presented as having severe childhood trauma, generalized anxiety and
depression. She was diagnosed with
post-traumatic stress disorder and was taking five medications for anxiety,
sleep and depression. Dana’s treatment
was ongoing and her mental health issues were stabilizing with a guarded, but
favorable, prognosis. Dana failed to
drug test twice in January 2011, resulting in presumptive positive tests, and
submitted a third negative test in January.
At the dispositional hearing, the
juvenile court removed Trinity from Dana’s custody and gave her reunification
services consisting of counseling for substance abuse, mental illness and
failure to protect, and random drug testing.
The court advised Dana that failure to submit to a test when requested would
be considered a positive test result and ordered her to take her psychotropic
medication as required by her treating physician.
The Six-Month
Review Hearing
By the
August 8, 2011 six-month review hearing, Dana was participating in mental
health and failure to protect counseling, but was dropped from substance abuse
counseling as she continued to test positive for drugs and needed a higher
level of care. Dana, however, said she
did not want to go into a residential
program where she would have to associate with drug users. She said she had been in these programs for
nine months and did not think there was anything else she could learn. Dana thought her problem was her environment,
as well as her “having a life.†Over the
six month review period, Dana had been called 18 times to drug test; of those,
she missed five tests, five were positive for methamphetamine, two were
suspicious, one was positive for marijuana, four were negative, and the results
of the last test were pending. Although
Dana was participating in some of her case plan components, she was making
minimal progress, especially in refraining from substance abuse. She was visiting Trinity, but was late almost
every week and at times had to be redirected because she became too emotional. At one of the visits, Trinity remarked that
Dana was always like that and she was used to dealing with it. Dana continued to deny her substance abuse
problem and blame others for her situation.
Trinity had
been moved to a foster home in March 2011, after the social worker confirmed
with Trinity that mother and her husband were making her feel unwanted in their
home.
The
juvenile court found return of Trinity to Dana’s physical custody would create
a substantial risk of detriment to her safety, protection or physical or
emotional well-being, and that Dana had made minimal progress in her case
plan. The court continued Dana’s
reunification services.
The 12-Month Review
Hearing
The
12-month review hearing was held on November 17, 2011. Dana had re-enrolled in substance abuse
counseling on August 8, completed failure to protect counseling on October 4,
and continued to have therapy sessions every other week. Although she appeared to have made
substantial progress by participating in counseling, she still had not made any
progress in staying sober and continued to be in denial regarding her substance
abuse problem. She was called to drug
test ten times; of those, three were positive for methamphetamine, six were
negative, and one was presumed positive because she failed to provide a
sample. Dana continued to visit Trinity
regularly; the social worker opined that visits were beneficial to both of
them. The Department recommended
continuing reunification services to Dana “in the hopes that [she] will
acknowledge her drug abuse, be honest about her condition and truly benefit
from substance abuse counseling.†The
juvenile court continued services for a full 18 months.
The
18-month review hearing was originally calendared for April 13, 2012, but was
continued several times; it ultimately was held on August 29, 2012. On July 30, 2012, the Department filed a
petition to terminate Dana’s guardianship of Trinity. The Department alleged that termination was
in Trinity’s best interest because Dana had failed to reunify with her. The petition was to be heard on the same date
as the review hearing.
In an April 2012 social study, the
social worker reported she met with Dana to discuss her case plan on December
7, 2011, January 4, 2012 and February 22, 2012, mailed letters to her on
December 5, 2011 and March 16, 2012, and spoke with her on the telephone on
December 20, 2011. Dana still had not
made progress in resolving her substance abuse issues. Although she had been enrolled in substance
abuse counseling since August 8, 2011, and attended 38 of 46 sessions, she was
dropped from the program on January 17, 2012.
Dana continued to submit positive or presumptive positive tests throughout
the entire review period. The substance
abuse counselor felt that Dana “was pulling the wool over his eyes.†Dana had been coming to group very emotional
and reported that “her boyfriend had just died.†Due to her behavior, the substance abuse
counselor felt Dana needed a higher level of care.
Despite the social worker’s
encouragement, Dana continued to deny her substance abuse addiction, and was
very emotional and unstable. During a
December 20, 2011 conversation with the social worker, Dana denied using
drugs despite positive drug tests and thought things would get better once
Trinity was in her custody.
On January 4, 2012, Dana assured
the social worker that she only used drugs because she “gets lonely and seeks
friendship in the wrong people.†Dana, a
medically retired registered nurse, explained that she would begin probation
for the nursing board in the next 60 days, and would have to go through a
substance abuse program, which would include regular testing. Dana said she would have to pay all the
expenses for the program and would be actively seeking employment. The social worker told Dana the juvenile
court might not accept the program she needed to take for her nursing probation
and discussed with her the need to be reassessed for another substance abuse
program. Dana said she needed to get a
job so to “survive†and to change her environment.
Dana told the social worker her
home was broken into over the holidays.
She received a call from “a girl†requesting a ride; when she returned
home after giving the girl the ride, she realized her home had been
burglarized. The social worker asked
Dana if she thought she needed to enroll in a residential treatment program so
she could change her environment and get extra support. Dana said she thought about it, but she did
not feel she needed it; she was concerned that she would not be able to protect
her home if she went into a residential program and felt she had learned
everything she needed to learn from the programs she had attended. Dana said she would look for a job over the
next few weeks and then return to be assessed for a treatment program. She believed that if she got a job she could
change her environment and her use of drugs, as she only used drugs because she
was involved with people who know where and how to get them. Dana did not feel there was a substance abuse
program that would not interfere with her job search.
On February 22, 2012, Dana told the
social worker she was continuing to seek employment so she could get her
nursing license back. She had not
returned for an assessment. Dana
explained she would be required to take a substance abuse program for the
nursing board and to drug test regularly.
The social worker warned Dana that if she did not complete her case plan
requirements by the next court hearing her services would be terminated. Dana said she was not a drug addict; she only
made bad choices by allowing others to influence her. The social worker told Dana she needed to get
into a substance abuse program that would benefit her. Dana, however, did not believe a substance
abuse program would help her and she thought the social worker was the cause of
her not receiving her substance abuse certificate of completion.
Dana missed two visits with Trinity in
March 2012, and another in April. When
Dana did visit, she acted appropriately as long as she was emotionally stable;
when Dana was upset and crying, however, she needed to be redirected to be more
appropriate. Trinity was upset about the
missed visits.
Trinity was
moved to the home of a non-relative extended family member (NREFM) in February
2012, after her previous placement ended when the caretakers gave notice due to
concerns about her behavior. The Kern
County Adoptions Agency conducted an adoptions review on March 26, 2012, and
recommended Trinity be referred to long term foster care since she was not
likely to be adopted and legal guardianship was not appropriate at the time as
she had only been in her current home a short time.
In an August 2012 social study, the
social worker reported that she had attempted to continue offering Dana
reunification services, but was having difficulty maintaining contact with Dana
to determine her progress. The social
worker documented the multiple attempts she made to contact Dana both in
person, and through monthly case plan reminders and appointment letters, as
follows: (1) she went to Dana’s home on April 27, but the front gates were
locked and no one came out of the house when she shook the gate; (2) she mailed
a case plan reminder and appointment letter to Dana on May 15, but she did not
keep the appointment; (3) she mailed an appointment letter to Dana on
June 18, for a June 22 appointment; (4) she went to Dana’s home on June
21, but no one answered the front door when she knocked on it; (5) she telephoned
Dana on July 23, but the telephone rang several times and then gave a busy
signal; (6) she went to Dana’s home on August 23, but she could not get to the
front door because the front gates to the home were locked with chains, and no
one came out of the house when the social worker shook the gate; and (7) she
sent a case plan reminder letter to Dana on August 24. Dana had not made herself available for
continued drug testing, nor had she visited Trinity in person since June 2012.
It appeared that Dana’s mental
state had deteriorated even further. On
June 18, the NREFM reported to the social worker that she spoke with Dana, who
told the NREFM that she was not coming to her scheduled visits; the NREFM said
that Dana was crying and really emotional, and said she was thinking of killing
herself. Dana said she had some people
living in her home who refused to leave and were stealing her belongings. Dana rambled from one subject to the next and
continued to speak without giving her a chance to respond. The social worker told the NREFM to call 911
and report the conversation, and said she would be suspending Dana’s visits
until the social worker returned from vacation and could meet with Dana.
While Dana was not visiting Trinity
in person, she was talking to her on the telephone. The NREFM reported that she saw Trinity
become upset and cry because Dana was making her feel guilty when they spoke on
the telephone. Trinity told the social
worker she wanted to continue to have telephone contact with Dana, but
confirmed Dana often made her feel guilty because she was not able to live with
her. The social worker was unable to
confirm if Dana was still attending mental health counseling. The social worker reported that Trinity was
doing well in the NREFM’s home, and she wanted to remain there and be under
legal guardianship if she was unable to live with Dana.
The Department recommended
termination of reunification services, termination of the guardianship, and
that Trinity be placed in long term foster care.
At the review hearing, the
Department submitted on the social worker’s reports and asked the court to
terminate services and the guardianship.
Counsel for Dana objected without further evidence as to both issues. After the other parties submitted, the juvenile
court stated it had read and considered the social worker’s reports and, based
on that information, made the following findings, as pertinent here: (1) Dana had made minimal progress and
efforts in her case plan; (2) returning Trinity to Dana’s physical custody
would create a substantial risk of detriment to Trinity’s safety, protection,
or physical or emotional well-being; and (3) the Department had complied with
the case plan by making reasonable efforts in providing reasonable services. The court terminated Dana’s reunification
services. With respect to the
guardianship, the juvenile court granted the petition to terminate the
guardianship based on the evidence presented, finding it was in Trinity’s best
interest to do so. At the Department’s
request, the court scheduled a section 366.3 hearing for September 27, 2012, to
determine a permanent plan for Trinity.
As
Trinity’s guardian under the Probate Code, Dana was entitled to receive
reunification services. (
235, 249-250 (Merrick V.); § 361.5,
subd. (a).) Dana received over 18 months
of reunification services before the juvenile court terminated those services
as well as the guardianship. On appeal,
Dana challenges the juvenile court’s findings that it would be detrimental to
return Trinity to her custody and the Department made reasonable efforts in
providing her services. She further
contends the juvenile court erred by failing to set a section 366.26 hearing,
and her trial counsel was ineffective.
We address each contention in turn.
Dana
contends substantial evidence does not support the juvenile court’s finding
that she posed a substantial risk of harm to Trinity if she were placed in her
custody. She asserts the primary reason
the Department did not recommend that Trinity be returned to her care was her
ongoing use of drugs, and argues that drug use, without more, is insufficient
to show a risk of harm to Trinity. While
Dana recognizes “the time has long passed for her to assert error on appeal
from the jurisdiction hearing,†she argues this case presents a miscarriage of
justice and urges us to consider that Trinity was removed from her care without
substantial evidence of risk of harm and then was abused emotionally by mother
and her foster parents. Finally, she
contends the juvenile court erred in failing to set forth a factual basis for
its conclusion Trinity’s return would be detrimental to her. We find Dana’s contentions meritless.
Section 366.22, which governs the
proceedings at the 18-month review hearing, required the juvenile court to
return Trinity to Dana’s custody unless it found by a preponderance of the
evidence that her return would create a substantial risk of detriment to her
safety, protection, or physical or emotional well-being. (§ 366.22, subd. (a).) The Department bears the burden of
establishing that detriment. (
The juvenile court is guided in making its determination by the
Department’s assessment contained in its status report of parental efforts to
utilize the services provided and the resulting progress. (Ibid.) Parental failure to regularly participate and
make substantive progress in court-ordered services constitutes prima facie
evidence of detriment. (
Substantial evidence is the
standard by which we review the juvenile court’s finding of detriment. (Constance
K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) On the facts of this case, as summarized
above, we conclude substantial evidence supports the juvenile court’s detriment
finding.
Dana’s failure to participate in
substance abuse treatment constitutes prima facie evidence that it would be
detrimental to return Trinity to her custody.
The fact that she completed other requirements of her case plan does not
diminish the sufficiency of that evidence, which supports the juvenile court’s
finding. Dana contends the primary
reason Trinity was not returned to her was her continued drug use, which “‘
within the jurisdiction of the dependency court.†(In re
Destiny S. (2012) 210 Cal.App.4th 999, 1003 (italics in original).) While Dana asserts her only problem was drug
use, there is more than drug use here that supports a detriment finding, namely
Dana’s emotional instability, her continued denial that she even had a
substance abuse problem, and her failure to remain in contact with the social
worker or to visit Trinity in person.
Dana’s continued drug use impaired her emotional stability and ability
to care for Trinity, as demonstrated by Dana’s inability to interact
appropriately with Trinity during visits, her emotionally harming Trinity by
making her feel guilty about not living with her, and her continued association
with people Dana described as the “wrong people,†who she said would live with
her and steal her things.
While Dana minimizes her conduct
and claims that Trinity has never been at risk of detriment throughout these
proceedings, the record shows that Dana used methamphetamine and marijuana,
associated with drug users who Dana allowed to visit her house with Trinity
present and who she admitted stole things from her, and she threw objects in
anger. Although the objects were not
thrown at Trinity, Trinity was still placed at risk of harm should an object
inadvertently hit her or cause her indirect injury. During the following 18 months of
reunification services, Dana could not remain drug free or become emotionally
stable. She was discharged from four
substance abuse programs and, despite continuing to test positive for drugs,
denied she had a problem. Dana’s level
of denial is an appropriate factor to consider when determining the risk to
Trinity if placed with Dana. (
1036, 1044 [denial is a factor often relevant to determining whether persons
are likely to modify their behavior in the future without court
supervision].) Dana’s denial created a
risk of harm to Trinity if she were returned to Dana’s custody, as Dana’s
continued substance abuse caused her, by her own admission, to associate with
drug suppliers and users who lived in her home and stole things from her.
In sum, substantial evidence
supports the juvenile court’s finding that Trinity would be at substantial risk
of detriment to her safety, protection, or physical or emotional well-being, if
she were returned to Dana.
Dana points out the juvenile court
failed to articulate the factual basis for its detriment finding as required by
statute, and argues that failure compels a reversal of the juvenile court’s decision
and remand to make such a finding. We
disagree that the failure requires reversal.
While the juvenile court was required to specify “the factual basis for
its conclusion that the return would be detrimental†(§ 366.22, subd. (a)), its
failure to do so does not require reversal “where ‘it is not reasonably
probable such finding, if made, would have been in favor of continued parental
custody.’†(In re Jason L. (1990) 222 Cal.App.3d 1206, 1218; see also
73, 83.) Because we find the juvenile
court’s decision is supported by substantial evidence, we conclude any error in
failing to specify a factual basis is harmless.
It is not reasonably probable that the proper findings, if made, would
have been in favor of continued parental custody.
Reasonableness of
Services
Dana
contends the juvenile court erred in finding she was provided reasonable
services, claiming the Department did not make reasonable efforts to assist her
in accessing services. Specifically, she
contends that, based on her conversations with the social worker, the social
worker should have given her referrals for (1) in-patient drug rehabilitation,
(2) assistance with employment obstacles, or (3) assistance in securing her
home and possessions. Dana further
asserts the social worker should have done more to check on her welfare when
the social worker was unable to find her at home. She argues that it was not reasonable for the
social worker to write a few letters after being informed she was suicidal.
At the 18-month review hearing, the
juvenile court must determine if reasonable services have been offered or
provided. (§ 366.22, subd. (a).) In making its determination, the juvenile
court considers not only the appropriateness of services offered but also the
extent to which the department facilitated utilization of the services and the
extent to which the offending parent availed him or herself of the services
provided. To be reasonable, the services
provided need not be perfect. The
“standard is not whether [they] were the best that might have been provided,
but whether they were reasonable under the circumstances.†(Elijah
R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) Services are reasonable when the supervising
agency identifies the family’s problems, offers services targeting those
problems, maintains reasonable contact with the offending parent(s), and makes
reasonable efforts to assist in areas where compliance is difficult. (In re
Riva M. (1991) 235 Cal.App.3d 403, 414.)
However, reunification services are voluntary and the Department cannot
force an unwilling and/or indifferent parent to participate in the case
plan. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365.)
On a challenge to the juvenile
court’s reasonable services finding, we view the evidence in a light most
favorable to the respondent, indulging all legitimate and reasonable inferences
to uphold the verdict. (
538, 545.) If substantial evidence
supports the juvenile court’s finding, we will not disturb it. (Ibid.) As Dana bears the burden of demonstrating
error on appeal (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), she must show that the
juvenile court’s finding that the Department made reasonable efforts to
facilitate reunification services is not supported by substantial evidence.
In this
case, Dana received referrals for all her court-ordered services, but chose not
to participate. While Dana contends the
social worker should have referred her to inpatient drug rehabilitation, the
record shows that Dana consistently refused to consider such a program. Moreover, it was not the social worker’s
responsibility to provide referrals to drug treatment programs; instead, Dana
was to request referrals from a “GATE team.â€
The social worker encouraged Dana to consider an inpatient program, but
she refused to do so, stating that she felt she “has learned everything there
is to learn.†Dana also asserts the
social worker should have helped her with employment obstacles and securing her
home and belongings, but these things did not actually prevent her from
completing her services; instead, it was Dana’s continued insistence that she
did not have a drug problem and she knew everything she needed to learn that
prevented her from completing the services she needed to reunify with Trinity.
The
Department offered services that were designed to remedy the problems that led
to dependency, namely substance abuse and mental health. Dana, however, refused to participate. Although she completed the failure to protect
program, she was discharged from drug treatment three times, failed to enter
another treatment program, continued to test positive, and then stopped testing
completely. The social worker attempted
to contact Dana by going to her home, mailing case plan reminders, setting up
appointments, and telephoning her, but she had severed all contact with the
Department.
Dana asserts the social worker
should have done more, especially after the NREFM reported, in June 2012, that
Dana said she was thinking of killing herself.
The record shows, however, that the social worker told the NREFM to call
911 and report the conversation, mailed Dana an appointment letter that day for
an appointment four days later; and went to Dana’s home the day before the
appointment, but Dana was not at home, did not appear for the appointment and
did not call. Despite these efforts,
Dana chose not to contact the Department or engage in services. We cannot say that the Department unreasonably
failed to assist Dana with her services.
While the Department is required to assist in the reunification process,
the assigned social worker is not expected to take the parent by the hand and
escort her through the process. (
1448, 1463, fn. 5.)
The record
supports the findings that the Department made reasonable efforts, including
efforts with respect to drug treatment, and that reasonable services were
provided to Dana. Dana was unwilling to
participate in her services, lost interest in visiting Trinity, and failed to
maintain contact with the Department.
She cannot now claim that the Department failed in its efforts to assist
her when she made no effort to assist herself.
We find no error on this record.
Dana
asserts her trial counsel was ineffective because he did not engage in
“diligent advocacy†throughout the dependency proceedings. Citing to each court hearing from detention
to the 18-month review hearing, Dana points out that her trial counsel said
little or nothing, and submitted or objected to most of the Department’s
recommendations without submitting evidence or argument. She claims that “[a]s set forth in this brief,
there were many legal issues and evidentiary issues which counsel failed to
address or challenge,†and, at a minimum, he “should have challenged the
sufficiency of the evidence and the findings needed to support the juvenile
court’s orders, from the inception of the case through the section 366.22
hearing.†She concludes that without
effective assistance of counsel, she was unable to protect her legal interests
in Trinity’s custody.
We first
note that Dana has forfeited her right to raise her claim of ineffective
assistance of counsel from previous hearings, as such claims generally are
forfeited in dependency proceedings if not timely raised. (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1159-1160.) Since Dana did not challenge the juvenile
court’s prior rulings by appealing from them, she has forfeited appellate
review on the issue of ineffective assistance arising from any hearing other
than the one from which she appealed.
Dana
generally asserts her trial counsel should have challenged the sufficiency of
the evidence and the findings needed to support the juvenile court’s
orders. A party asserting
ineffectiveness of counsel must prove trial counsel’s performance was
deficient, resulting in prejudicial error.
(In re Kristin H. (1996) 46
Cal.App.4th 1635, 1667-1668.) We need
not evaluate counsel’s performance if Dana fails to prove prejudicial error,
i.e., absent counsel’s errors, there is a reasonable probability of a more
favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective
assistance of counsel, Dana would have to show that but for her attorney’s
failure to challenge the sufficiency of the evidence and the findings needed to
support the juvenile court’s orders, there is a reasonable probability the
juvenile court would have returned Trinity to her custody or found that she was
not provided reasonable reunification services.
Dana was
not prejudiced as a result of her trial attorney failing to raise the issues
she now raises on appeal. Dana received
22 months of services specifically designed to address the issues that brought
Trinity into dependency. Instead of
participating in services, Dana was discharged from substance abuse treatment
three times and then refused to reenter a treatment program despite continuing
to test positive for drugs, all the while denying she had a substance abuse
program and blaming everyone except herself for her addiction. The social worker repeatedly encouraged and
redirected Dana, but she still was unable to control her
from people who used drugs, and tried to understand her rationale and
empathized with her. On numerous
occasions, the social worker encouraged Dana to get into residential
treatment. Dana, however, denied that
she needed residential treatment, felt she had learned all she needed, and
refused to admit she had a substance abuse problem. Toward the end of reunification, Dana just
quit; she refused to respond to the social worker’s visits, calls or letters.
Given the
juvenile court’s provision of more than 18 months of reasonable services, and
Dana’s failure to regularly participate in them, Dana fails to show how more
time or additional evidence or witnesses would have altered the outcome given
the state of the evidence. Consequently,
she fails to show prejudice and her claim of ineffective assistance of counsel
must fail.
Failure to set
Section 366.26 Hearing
Dana
contends the juvenile court committed reversible error when, after terminating
reunification services and the guardianship, it set a section 366.3 hearing
instead of a section 366.26 hearing.
Dana asserts that because Trinity was not returned to her custody,
section 366.22, subdivision (a) required the juvenile court to order that a
hearing be held pursuant to section 366.26, to determine the most appropriate
plan for Trinity, whether adoption, guardianship or long-term foster care. (§ 366.22, subd. (a).) Dana recognizes section 366.22, subdivision
(a) permits the juvenile court to bypass a section 366.26 hearing under
“limited circumstances,†namely where it finds by clear and convincing
evidence, including a recommendation by the State Department of Social Services
when it is acting as an adoption agency, that there is a compelling reason for
determining that a section 366.26 hearing is not in the best interest of the
child because the child is not a proper subject for adoption and no one is
willing to accept legal guardianship. (§
366.22, subd. (a).) She asserts,
however, there is not sufficient evidence to support such a finding here. The
Department contends Dana lacks standing to challenge the order setting the
section 366.3 hearing. We agree.
In juvenile
proceedings, only a party aggrieved by an order has standing to appeal. (In re
Harmony B. (2005) 125 Cal.App.4th 831, 837.) The appellant must establish he or she is an
aggrieved party to obtain an on-the-merits review of a particular ruling. (In re
Carissa G. (1999) 76 Cal.App.4th 731, 734.)
To be aggrieved, a party must have a legally cognizable immediate and
substantial interest which is injuriously affected by the court’s
decision. (Ibid.) “‘Whether one has
standing in a particular case generally revolves around the question whether
that person has rights that may suffer some injury, actual or
threatened.’†(Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034.)
Dana had
custody of Trinity pursuant to a guardianship of the person established under
the Probate Code. Pursuant to Probate
Code section 1601, a guardianship of the person may be terminated upon petition
of the guardian, a parent, or the ward, “if the court determines that it is in
the ward’s best interest.†Such a
guardianship may be terminated by the juvenile court in a section 300
dependency proceeding pursuant to section 728.
A motion to terminate the guardianship may be brought by the appropriate
county department, district attorney, county counsel, the guardian or the
minor’s attorney. (§ 728, subd. (a).) The hearing on the motion may be held
“simultaneously with any regularly scheduled hearing held in proceedings to
declare the minor a dependent child or ward of the court, or at any subsequent
hearing concerning the dependent child or ward.†(Ibid.) As this court has recognized, section 728
gives the juvenile court authority to terminate a probate guardianship at any
stage in the dependency proceedings. (
1398, 1414.)
In this
case, the juvenile court terminated Dana’s probate guardianship at the 18-month
review hearing. While in this appeal
Dana challenges the juvenile court’s findings that it would detrimental to
place Trinity with her and that she was provided reasonable services, Dana does
not otherwise argue the juvenile court erred in terminating the
guardianship. Having found no merit to
Dana’s assertions of error on appeal, the guardianship remains terminated. Accordingly, Dana is no longer Trinity’s
guardian and has no legally cognizable interest in whether the juvenile court
sets a section 366.26 hearing for Trinity.
Dana
contends she has a legally cognizable interest because she has been Trinity’s
guardian for seven years, the issues to be analyzed at the section 366.26
hearing affect her future relationship with Trinity, and until the section
366.26 hearing, when the juvenile court “may terminate the guardianship,†she
retains an interest in the juvenile court’s prospective orders. Pointing out that a probate guardianship
differs from a dependency guardianship, she asserts as Trinity’s legal
guardian, she is equal to the parent both during the reunification period and
for purposes of long term planning, and, as such, she should be treated as the
legal custodian for purposes of permanency planning.
Dana’s argument fails, however, for
the simple reason that she is no longer Trinity’s guardian. With the probate guardianship terminated,
Dana has no standing as a legal guardian to challenge further juvenile court
proceedings. Having found no error in
the juvenile court’s decision to terminate reunification services, and Dana
asserting no other error with respect to the termination of the guardianship,
she lacks any legal interest in the outcome of continuing proceedings involving
Trinity, and therefore lacks standing to challenge the order setting the
section 366.3 review hearing.
DISPOSITION
The juvenile court’s orders are
affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Poochigian, J.
Welfare and Institutions Code unless otherwise noted.
husband as Ralph and to Dana’s son as father.
