T.P. v. Super. Ct.
Filed 11/27/13
T.P. v. Super. Ct. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
T.P.,
Petitioner,
v.
THE SUPERIOR COURT OF
STANISLAUS COUNTY,
Respondent;
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Real Party in Interest.
F068050
(Super.
Ct. Nos. 516423, 516424)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
T.P., in pro. per., for Petitioner.
No appearance for Respondent.
John P.
Doering, County Counsel, Maria Elena Ratliff, Deputy County Counsel, for Real
Party in Interest.
-ooOoo-
T.P. (mother), in propria
persona, seeks an extraordinary writ from the juvenile court’s orders issued at
a contested 12-month review hearing (Welf. & Inst. Code, § 366.21,
subd. (f))
setting a section 366.26 hearing as to her six-and four-year-old sons, Nathan
and Sebastian, respectively. Mother
seeks a continuation of reunification
services and return of the children to her custody. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
In February
2012, Nathan and Sebastian’s maternal grandmother, Karen, petitioned the
County juvenile court for guardianship over then four-year-old Nathan and two-year-old
Sebastian. Mother had left the children
in Karen’s care and Karen claimed mother had been reported to Child Protective
Services (CPS) for child abuse and was depressed and suicidal. Karen also stated that the children’s fathers
were in Mexico.
The juvenile
court ordered the San Joaquin County Human Services Agency (SJ agency) to
investigate Karen’s circumstances and provide an assessment. The SJ agency reported that Karen had an
extensive CPS history that resulted in the adoption of two of her
children. In addition, Karen had a
criminal history that included a conviction for child cruelty. The SJ agency recommended against
guardianship and filed a dependency petition on the children’s behalf.
The
juvenile court adjudged the children dependents under section 300 and, in
September 2012, transferred the case to Stanislaus County, mother’s county of
residence. The Stanislaus County
juvenile court (juvenile court) accepted the case and set the dispositional
hearing for November 2012. The
Stanislaus County Community Services Agency (agency) placed the children
together in foster care.
The agency
reported mother had a history of referrals dating back to 2008, including
reports that she yelled at the children, left them unattended, and smoked
marijuana in their presence. In
addition, mother disclosed a history of depression for which she was hospitalized,
but did not elaborate. She later
revealed that she was seeking treatment for her depression when she left the
children with her mother. She was
hospitalized for a month and prescribed an antidepressant.
In its
report for the dispositional hearing, the agency recommended the juvenile court
order a reunification plan for mother that required her to complete a clinical
assessment and parenting program, participate in individual counseling and
weekly visitation, and submit to random drug testing, if requested. Mother’s case plan further required her to
complete a substance abuse assessment and follow any recommended treatment if
she tested positive for drugs.
In November
2012, the juvenile court approved the proposed reunification plan for mother
and denied reunification services for Nathan and Sebastian’s fathers. The juvenile court also set the six-month
review hearing for the following month.
In December
2012, the juvenile court convened the six-month review hearing but continued it
until late January 2013, to hear mother’s Marsden
In its
report for the six-month review hearing, the agency advised the juvenile court that
mother scheduled initial appointments but was not otherwise participating in
her services. In addition, she missed
four visits, appeared to lack parenting skills, and the children did not appear
distressed when separating from her.
In January
2013, at the six-month review hearing, the juvenile court continued mother’s
reunification services and set the 12-month review hearing for June 2013. Mother did not appear at the hearing.
In April
2013, mother informed her social worker that she was approximately six weeks
pregnant and expected to deliver in early December 2013.
In early June
2013, mother tested positive for opiates following a visit. She denied abusing drugs and explained she
was given Vicodin at the emergency room a few weeks before. Several days later, mother completed an alcohol
and drug assessment, again denying any drug abuse. Mother’s social worker told her to attend
Alcoholics/Narcotics Anonymous meetings for 21 consecutive days after which the
agency would authorize another alcohol and drug assessment.
In its
report for the 12-month review hearing, the agency reported mother was not
compliant with any aspect of her case plan and that she missed at least 13
visits from November 2012 to May 2013.
The agency recommended the juvenile court terminate her reunification
services.
Mother
requested a contested hearing, which the juvenile court set for early July
2013. Meanwhile, mother completed a
second alcohol and drug assessment during which she admitted taking Vicodin
with an outdated prescription and codeine without a prescription. She disclosed she was not taking any
psychotropic medication because of her pregnancy, even though she was
increasingly symptomatic. She said she and
her doctor were exploring treatment options for her and she was willing to
receive treatment for her prescription medication abuse. As a
result of the assessment, mother was referred for drug treatment.
In July
2013, at the time set for the 12-month review hearing, the juvenile court continued
the hearing, along with mother’s services, until September 2013, but warned her
it was her last chance. The following
day, mother’s social worker sent her a letter listing the services she needed
to complete along with the names and telephone numbers of the individuals she
needed to contact to initiate services.
In late
July 2013, mother began intensive outpatient treatment but was terminated from
the program in late August for excessive absences. By September 2013, mother completed the group
parenting classes but had yet to begin the individual parenting sessions. In September, she completed a clinical
assessment in which the clinician recommended mother complete a psychological
evaluation. After the assessment, mother
began individual counseling with the same clinician. During this time, she tested negative for
drugs and visited the children weekly.
In its
report for the continued 12-month review hearing, the agency recommended the
juvenile court terminate mother’s reunification services and set a section
366.26 hearing. The agency opined that
mother had not “effectively engaged in her case plan and demonstrated that she
is serious about having her children returned to her care.â€
In
September 2013, on the date set, the juvenile court convened the continued
contested 12-month review hearing.
Mother, the sole witness, testified she stopped participating in
intensive outpatient drug treatment because she did not like to hear about
drugs and did not need to be there. She
denied being a drug addict or using drugs recreationally. She said she was not willing to further
participate in drug treatment.
Mother was questioned about her positive
result for an opiate in June 2013. She
testified she was treated at the hospital for a bad yeast infection on the day
she was drug tested. The doctor gave her
Vicodin for pain at the hospital but did not give her a prescription.
Mother further testified she had a
two-bedroom apartment where the children could live and she wanted the juvenile
court to return them to her custody.
Following argument, the juvenile
court found it would be detrimental to return the children to mother’s custody
and terminated her reunification services.
In so ordering, the juvenile court also found mother was provided
reasonable reunification services but made minimal progress in her services
plan and there was not a substantial probability the children could be returned
to her custody if services were continued for another six weeks to reach the
18-month review. Finally, the juvenile
court set a section 366.26 hearing to be conducted in January 2014. This petition ensued.
DISCUSSION
Mother does
not identify specific orders and findings of the juvenile court she claims are
erroneous or set forth legal arguments
in her writ petition as required by California Rules of Court, rule 8.452(b) (rule
8.452), which governs the procedures for initiating dependency writ proceedings
in this court. Rather, she makes
assertions regarding her reunification services, social worker and attorney. In essence, mother contends she sufficiently
complied with her services plan to warrant an order continuing reunification
services, citing her completion of a parenting program and clinical assessment,
and participation in individual counseling.
Mother further contends she should not be penalized for not
participating in intensive outpatient drug treatment because she did not need
it, pointing to her one positive drug test result and lack of drug-related
criminal history. She informs this court
that she has been “clean†for over 100 days.
She also asserts her social worker was biased against her and her
attorney did not work with her. She asks
this court to direct the juvenile court to return the children to her custody,
continue her reunification services and terminate its
Though
mother’s petition does not technically comply with the content requirements of
rule 8.452, we will liberally construe a petition in favor of its sufficiency in
order to determine the petition on the merits.
(Rule 8.452(a)(1) & (d).) In
this case, we construe the petition as challenging the juvenile court’s findings
that it would be detrimental to the children to return them to mother’s custody,
and mother was provided reasonable services, and its order terminating
reunification services. We also construe
the petition as raising a claim of ineffective assistance of counsel.
Return of the Children
At the 12-month review hearing, there is
a statutory presumption that
a dependent child will be returned to parental custody unless the juvenile
court finds, by a preponderance of the evidence, that the return of the child
would create a substantial risk of detriment to the child’s safety, protection
or well-being. (§ 366.21, subd. (f).) In assessing detriment, the juvenile court
first determines whether the parent regularly participated in his or her
court-ordered services and whether the parent made substantive progress. (Ibid.) If the parent has not done so, the juvenile
court may find prima facie evidence that it would be detrimental to return the
child. (Ibid.) In other words, the
juvenile court may find that it would be detrimental to return the child simply
based on the parent’s failure to participate and progress in services.
In this case, mother refused to participate in intensive
outpatient drug treatment. She argues it
was an inappropriate service for her based on what she claims is a negligible
history of drug use. However, the
reunification plan ordered by the juvenile court at the dispositional hearing
required her to complete a substance abuse assessment if she tested positive
for drugs. Mother tested positive, was
assessed, and was referred for intensive outpatient drug treatment. Mother did not challenge that component of
her reunification plan by direct appeal from the juvenile court’s dispositional
order. Consequently, she assented to the
content of the plan and cannot challenge it on her writ petition. (In re
Julie M. (1999) 69 Cal.App.4th 41, 47.)
Further, though mother participated in certain aspects of
her case plan, she did not participate at all in drug treatment. Consequently, prima facie evidence of
detriment exists on the record and the juvenile court did not err in not
returning the children to mother at the 12-month review hearing.
Continuation of Reunification Services
Where, as
here, the juvenile court cannot safely return a child to parental custody, the
juvenile court must set a section 366.26 hearing unless the court finds the
parent was not provided reasonable services or there is a substantial
probability the child could be returned to the parent on or before the 18-month
review hearing. (§ 366.21, subd.
(g).)
Mother
contends her social worker was biased against her but does not cite any
evidence to support her contention. In
addition, she does not cite any evidence that the agency did not satisfy its
duty of assisting her in accessing her court-ordered services. Consequently, she failed to show the juvenile
court’s reasonable services finding is error.
Mother further fails to show, and
the record does not support, a finding that there was a substantial probability
the children could be returned to mother’s custody by the 18-month review hearing,
which in this case fell on November 1, 2013.
In order to find a substantial probability of return, the juvenile court
had to find all of the following: mother
regularly visited the children; made significant progress in resolving the
problem prompting the children’s removal; and demonstrated the capacity and
ability to complete the objectives of the case plan and provide for the
children’s safety, protection and well-being.
(§ 366.21, subd. (g)(1).)
In this case, the juvenile court found
mother did not make significant progress in resolving the problem prompting the
children’s removal and did not demonstrate the capacity and ability to complete
the objectives of her case plan and provide for their safety in the six weeks
before the 18-month review hearing. We
conclude substantial evidence supports the juvenile court’s findings. The record strongly suggests mother abuses
prescription medication. In addition,
she refused to participate in drug treatment.
Under the circumstances, there was no reason to believe mother could or
would be able to safely parent the children in the short time remaining for
reunification.
Ineffective Assistance of Counsel
A petitioner 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 petitioner fails to prove prejudicial
error; i.e., absent counsel’s errors, there is a reasonable probability of a
more favorable outcome. (
1166, 1180.) Therefore, to prevail on a
claim that her attorney was ineffective, mother would have to identify the
specific acts that rendered her attorney ineffective and show that but for
those acts the juvenile court would have ruled in her favor.
In this case, mother merely asserts
her attorney “did not work for her†without specifying how counsel was
ineffective. Consequently, she failed to
meet her burden of demonstrating the ineffectiveness of counsel. Further, we found substantial evidence to
support the juvenile court’s decisions not to return the children and to
terminate mother’s reunification services and set a section 366.26 hearing.
Having affirmed the juvenile
court’s decisions not to return the children to mother’s custody and to
terminate reunification efforts, we need not address mother’s contention that
the juvenile court erred in retaining jurisdiction over the children. We find no error on this record.
DISPOSITION
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before Detjen, Acting P.J., Peña, J. and Oakley, J.â€
†Judge of the Superior Court of Madera County, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
name="_ftn2" title="">[1] All further statutory references
are to the Welfare and Institutions Code unless otherwise indicated.
