v. Superior Court
Filed 3/2/12 Veronica W. v.
Superior Court 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
VERONICA W.,
Petitioner,
v.
THE SUPERIOR COURT OF TULARE
COUNTY,
Respondent,
TULARE COUNTY HEALTH AND HUMAN
SERVICES AGENCY,
Real Party in Interest.
F063912
(Super.
Ct. No. JJV064901)
THE COURT
name="_ftnref1" title="">*
ORIGINAL PROCEEDINGS; petition for
Veronica W., in pro. per., for
Petitioner.
No appearance for Respondent.
Kathleen
Bales-Lange, County Counsel, and Carol E. Helding, Deputy County Counsel, for
Real Party in Interest.
-ooOoo-
Veronica, in
propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452)
from the juvenile court’s orders issued at a contested 12-month review hearing
terminating reunification services and setting a Welfare and Institutions Code
section 366.26
title="">[1] hearing as to her daughter, Lily. We deny the petition.
AND PROCEDURAL SUMMARY
On August 16, 2010, social worker
Melissa Urena from the Tulare County
Health and Human Services Agency (agency) and Agent S. Brown from the
Visalia Police Department responded to a report of suspected child abuse at
Central Valley Regional Center (CVRC).
There they observed then 21-month-old Lily with multiple bruises on her
face and body in varying degrees of healing.
Lily had facial bruising along her left hairline, temple, ear and cheek
and along the right side of her face above the jaw and trailing down her
neck. She also had bruises on her back,
hip and buttocks, a bald spot on the back of her head and two chipped front
teeth.
Veronica stated that she and Lily
lived with her brother, Ronald, his wife, Audra, and their three children, ages
six, three and 20 months. She said she
is Lily’s primary caregiver but that Ronald and Audra help her care for
Lily. On Friday, August 13, 2010, she
left Lily in Ronald and Audra’s care over the weekend. When she left, Lily did not have any bruises. Veronica returned on the evening of August
15, after Lily was already in bed.
Veronica did not see her until the next morning. When she saw the bruises, she thought Lily
fell. She said a couple of weeks
previously, Lily fell into the “decorative fireplace,” resulting in a bruise
and chipped teeth. Veronica also said
that Lily was not very stable and fell frequently. She said Lily does not have the ability to
catch herself or break her falls so she fell flat on her
with her. They climb on couches and
chairs and Lily tries to keep up with them but cannot.
Veronica
denied that she or anyone else in the household had difficulty controlling
their anger and said she disciplined Lily by placing her in time-out. She said Ronald used the same disciplinary
method with his children.
Veronica also told the social
worker that she had been diagnosed with bipolar disorder for which she took
medication. She said Lily’s only medical
condition was an eye condition in which her eye turned inward. She said their family doctor had referred
Lily to an eye specialist. Veronica
identified Richard A. as Lily’s father.
Richard was institutionalized for mental incompetence.
Agent Brown concluded Lily’s
bruising was not accidental or consistent with normal, everyday play and
authorized Ms. Urena to take Lily into protective custody. Lily was evaluated at the emergency room
where a brain scan and bone survey were conducted. The brain scan was unremarkable and no
fractures were identified on the bone survey.
The emergency room physician’s clinical impression was that Lily was
physically abused. He discharged her to
foster care with instructions to follow up with a primary care physician.
Dr. David Sine, Child Abuse Expert, also
evaluated Lily. He concluded that she
had been beaten on more than three occasions.
He noted that the bruising to her ear was “significant enough for G.B.I.
[great bodily injury].”
The day after Lily’s removal,
Veronica and Audra met with agency staff.
Audra showed Ms. Urena a picture of the fireplace where she said Lily
fell and was injured. She could not
explain, however, how all of Lily’s injuries could have been caused by the one
fall and could only surmise it was the result of “rough play” among the
cousins.
The social worker also spoke to
Veronica’s mother, Pam, who resides in Texas.
Pam and her husband, both nurses, moved from Visalia to Texas in
2010. Prior to that, the entire family,
including Veronica and Lily, lived in a large house in Visalia. Pam told the social worker that she never
witnessed Veronica act aggressively with Lily or anyone else. She said she was sure Lily was injured while
playing with her cousins. She also
stated that she and her husband wanted Veronica and Lily to move to Texas so
the family could care for Lily and help Veronica reunify with her. She said Veronica had planned to relocate to
Texas before the agency intervened.
Following its investigation, the
agency filed a dependency petition on Lily’s behalf alleging one count under
section 300, subdivision (a) (serious physical harm) that Veronica physically
abused her. The agency further alleged
two counts under subdivision (b) (failure to protect). Count (b)(1) alleged that Veronica failed to
protect Lily from the physical abuse of Ronald and Audra and count (b)(2)
alleged that Veronica’s mental illness placed Lily at a substantial risk of
serious physical harm. The agency also
alleged that Veronica subjected Lily to an act of cruelty (§ 300, subd.
(i)) and that Richard left Lily without provision for support (§ 300,
subd. (g)).
The juvenile court ordered Lily
detained pursuant to the petition and, in September 2010, convened the
jurisdictional hearing. Veronica’s
attorney, Adam Baiza, asked the juvenile court to appoint a guardian ad litem
(GAL) for Veronica. He said that while
reviewing the appeal rights and waiver of rights form with Veronica, he
concluded that she did not understand the matter. In addition, she and Ronald stated they
wanted another attorney to represent her.
Rather than appoint a GAL at that time, the juvenile court ordered
Veronica and Richard to undergo competency evaluations and set a competency hearing.
Elizabeth Gates, Ph.D., evaluated
Veronica’s competency in October 2010.
Veronica told Dr. Gates that her attorney got mad at her because she
would not waive her trial rights. She
said she did not trust him and she and her family wanted a trial.
Dr. Gates concluded that Veronica
had insight into her mental illness and was mentally stable and medication
compliant. In addition, she had adequate
intellectual function, demonstrated good knowledge of the proceedings and was
able to cooperate with counsel in a rational manner.
In October 2010, the juvenile court
convened the competency hearing but continued it. The court appointed new counsel, Mary Rogers,
to represent Veronica. Ms. Rogers
withdrew the request for a GAL.
In December 2010, the juvenile
court conducted a Marsden
contested jurisdictional hearing. During
the Marsden hearing, Veronica
informed the juvenile court that Ms. Rogers did not return her calls and that
they disagreed on trial strategy. Ms.
Rogers explained that Veronica had given her consent to discuss the case with
Pam and that Pam wanted various witnesses to be called, including a nurse who
could discredit Dr. Sine. However, Ms.
Rogers had advised Veronica to plead no contest because there was a criminal
case pending. Ms. Rogers said she was
not prepared to proceed with the jurisdictional hearing if Veronica wanted to
call witnesses. Following its inquiry,
the juvenile court denied Veronica’s request for a new attorney, explaining to
Veronica that Ms. Rogers fulfilled her duty in trying to contact Veronica and
that a disagreement on trial strategy was an insufficient basis for appointing
new counsel. The juvenile court
concluded the Marsden hearing and
conducted the contested jurisdictional hearing that same day.
Veronica testified and denied ever
striking Lily with her hand or any object that would cause bruising. She also denied seeing Ronald or Audra strike
Lily or seeing their children hit, shove or push Lily down. She said she disciplined Lily by placing her
in time-out. She never used her hand to
spank her and she did not “swat” her with anything. She testified that Lily sustained the bruise
on the left side of her face and down her neck by falling into a decorative
fireplace in Ronald’s bedroom where she was playing with her
one-and-a-half-year-old cousin. She did
not observe Lily fall but Ronald and Audra did.
She said this occurred two or three days before August 13, 2010. She said Lily sustained the other bruises
from playing and falling.
Veronica further testified that
their family physician, Dr. Varma, referred Lily to an eye specialist sometime
in 2010 prior to Lily’s detention.
Veronica had taken Lily to Dr. Varma after noticing that Lily fell easily,
bumped into things and held objects close to her face to see them. The eye specialist referred Lily back to Dr.
Varma because, according to Veronica, the specialist did not treat children. Following her detention, Lily was evaluated
by an eye specialist and was prescribed glasses.
Following Veronica’s testimony,
county counsel argued that Lily’s extensive bruising and the bald spot on her
head could not be explained by the one fall into the fireplace. County counsel also referred the juvenile
court to Dr. Sine’s opinion that Lily was injured nonaccidentally on three
occasions. Ms. Rogers argued that Lily
was never physically abused but rather had a vision problem that caused her to
fall, resulting in bruising. Lily’s
attorney joined in county counsel’s argument.
Following argument, the juvenile
court sustained the dependency petition on the section 300, subdivision (a)(1)
and (b)(1) allegations only. The court
also issued dispositional orders, removing Lily from Veronica’s custody and
ordering a plan of reunification.
Veronica’s plan required her to complete a parenting course, participate
in mental health services and participate in a child abuse intervention
program. The court also ordered two-hour
weekly visitation and set the six-month review hearing for June 2011. Veronica did not appeal from the juvenile
court’s dispositional orders.
In May 2011, the agency filed its
report for the six-month review hearing, recommending that the juvenile court
return Lily to Veronica’s custody under family maintenance. The agency reported that Veronica was
complying with her court-ordered services and regularly visiting Lily. Overall, visitation went well, however, Lily
cried a lot and Veronica, at times, became frustrated. Veronica told the social worker that she
wanted to move to Texas so that her family could help her as she no longer had
any family in Tulare County.
The agency further reported that
Lily had developmental and speech delays for which she was receiving services
at CVRC. In addition, the agency
reported that Lily had a history of seizures based on Veronica’s statement that
Lily had a possible seizure in June or July of 2010. Additionally, Lily had just been placed in
her second foster home in late May 2011.
In June 2011, the juvenile court
convened the six-month review hearing but continued it and set it for a
contested hearing at the request of Lily’s attorney. Two weeks later, the agency filed a report,
changing its recommendation and asking the juvenile court to maintain Lily in
foster care and continue services to the 12-month review hearing and, in the
interim, transition to unsupervised and overnight visitation. The agency’s revised recommendation was based
on concerns expressed by Lily’s attorney that Veronica would have difficulty
caring for Lily by herself given Lily’s developmental delays.
In mid-June 2011, the juvenile court conducted
the six-month review hearing. Ms. Rogers
informed the juvenile court that she and Veronica did not oppose the agency’s
change in recommendation. The court
amended Veronica’s reunification plan, requiring her to participate in Lily’s
CVRC services and continued reunification services to the 12-month review
hearing, which it set for November 2011.
In August 2011, Lily was placed in a third foster home.
In November 2011, the agency filed
its report for the 12-month review hearing and recommended the juvenile court
terminate Veronica’s reunification services.
The agency’s recommendation was based on its conclusion that Veronica
was not capable of effectively parenting Lily, properly engaging her or bonding
with her. The agency reported that
Veronica refused to participate in CVRC services and faulted her for
transmitting lice to Lily, which impacted their ability to participate in her
services. The agency also determined
that Veronica was negligent and irresponsible because she dropped a lit
cigarette in her purse causing it to burn.
The agency also reported that Veronica wanted Lily placed with Pam in
Texas but that Pam was not approved for placement for reasons the agency did
not specify. At the same time, the
adoption social worker was recommending adoption and the care provider was
willing to adopt.
In a series of addendum reports
filed for the 12-month review hearing, the agency informed the juvenile court
about Veronica’s conduct during visitation and lack of participation in the
inappropriately during a visit after being told of the agency’s recommendation
to terminate reunification services.
Veronica left the visitation room twice, the second time harshly telling
Lily to get out of her way. She returned
to the visitation room upset and demanded to know why she could not tell Lily
“what they were trying to do to her.”
When Veronica was told the visit would be terminated if her behavior
continued, she left the room angrily, calling the social worker a “f***ing
bitch.” She returned and completed the
visit but was very impatient with Lily.
She left the facility without acknowledging the foster parent or
Lily. Lily was extremely agitated while
being placed in the foster parent’s vehicle and later at the foster home.
In another addendum report, the
agency reported that Veronica attended 32 weeks of the child abuse intervention
program but, according to the program manager, did not appear to benefit from
the program. She was detached from the
group process, was passive-aggressive during group sessions and was unable to
utilize basic anger management skills.
She lacked insight into the behaviors that led to her referral for
services and showed no ability to empathize with her victim. The program manager said that Veronica would
be removed from the program if she did not show more progress after another two
months. The agency also received
information from Veronica’s therapist that she had not contacted him since
October 2011, for therapy. During her
last telephone contact with her therapist, Veronica “cussed him out” for not
returning her calls.
Prior to the hearing, the agency
also provided the juvenile court letters from Veronica and Pam, addressing
various concerns raised by the agency.
In December 2011, the juvenile
court conducted the contested 12-month review hearing. Veronica appeared represented by Ms.
Rogers.
Social worker Patricia Tounkara
testified that Veronica visited Lily twice a week for a total of four
hours. She said she did not believe that
Lily was bonding with Veronica but acknowledged that some of the visits were
positive. She said she never arranged
unsupervised or overnight visits because Veronica was not progressing in her
child abuse classes.
Ms. Tounkara also testified about
the lice infestation. She said that
Veronica was unable to participate in Lily’s services in September and October
2010, because she had head lice. Another
concern was that Veronica relied too heavily on Pam to help her make
decisions. Ms. Tounkara was concerned
that Veronica did not have a local support system and would not be able to
adequately care for Lily if Lily were returned to her care. Ms. Tounkara also testified that Veronica had
not internalized the parenting skills she was taught as evidenced by her
inability to sooth Lily or communicate with her properly. She said that Veronica communicated with Lily
as though Lily were an adult.
Veronica testified that she treated
herself for head lice and that she was able to eliminate it after two to three
weeks. She also explained how her purse
caught on fire. She said that the person
who drove her to Lily’s school for a meeting was smoking a cigarette and the
lit end of the cigarette fell into her purse without her knowledge. She was not aware of it until it was pointed
out to her later.
During argument, county counsel
asked the juvenile court to terminate Veronica’s reunification services based
on her failure to make substantive progress, most notably in the child abuse
intervention program. Lily’s attorney
joined in county counsel’s argument and asked the juvenile court to find that
visitation was detrimental and suspend it.
Ms. Rogers argued that explainable circumstances prevented Veronica from
fully complying with her services plan and that she otherwise substantially
complied. She asked the juvenile court
to continue services.
The
juvenile court found that Veronica did not participate in all of her services
or benefit from them, specifically citing her decision to discontinue contact
with her therapist. The juvenile court
also stated that Veronica had not taken responsibility for Lily’s condition and
did not appear to understand why the court was involved. Consequently, the juvenile court terminated
Veronica’s reunification services and set a section 366.26 hearing. The juvenile court also terminated visitation
for Veronica but ordered supervised visits for Pam in Tulare County. This petition ensued.
DISCUSSION
Veronica
contends trial counsel was ineffective for not defending her against the
agency’s allegations of child abuse. She
sets forth trial counsel’s error in the following paragraph from her writ
petition: “My case was never adequately
presented. Severe abuse was alleged but
never challenged or proven. Only a
doctor’s unsubstantiated report with no pictures taken by him. [Sic.] No one could ever state under oath that I
inflicted any injuries to my daughter, which I did not.”
present her version of the facts. By way
of relief, Veronica seeks Lily’s return to her custody or alternatively, continuing
reunification services and visitation.
assistance of counsel fails for at least two fundamental
reasons: Veronica waived her right to challenge the
juvenile court’s finding of child abuse by failing to raise it on a timely
appeal and she has failed to show
how she was prejudiced by trial counsel’s presentation of her case.
Veronica
does not specify when in the proceedings trial counsel was ineffective. Nevertheless, her contention that trial counsel
did not defend her against the allegations of child abuse leads this court to
conclude she is referring to the jurisdictional hearing and the juvenile
court’s jurisdictional finding that Veronica physically abused Lily, causing
her “serious physical harm” pursuant to section 300, subdivision (a).
In
dependency proceedings, the dispositional order is the appealable
judgment. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 (
are appealable from the dispositional order.
(In re Megan B. (1991) 235
Cal.App.3d 942, 950.) “[A]n unappealed
disposition … order is final and binding and may not be attacked on an appeal
from a later appealable order.
[Citations.]” (
1150.) This “waiver rule” applies even
where, as here, the issue raised concerns the effectiveness of trial
counsel. (Id. at p. 1151)
In
this case, Veronica did not challenge the juvenile court’s section 300,
subdivision (a) finding on appeal from the juvenile court’s dispositional
order. Consequently, we conclude that
she waived her right to raise a claim of ineffective assistance of counsel.
Even
assuming, arguendo, Veronica did not waive her claim of ineffective assistance,
we would nevertheless conclude that her contention fails because she did not
demonstrate
assistance of counsel.
In order to show ineffective assistance
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. (In re Nada R. (2001) 89 Cal.App.4th
1166, 1180.) Therefore, to prevail on a
claim of ineffective assistance of counsel, Veronica would have to show that
but for trial counsel’s inadequate presentation of her case, the juvenile court
would have dismissed the allegations of child abuse.
Veronica contends that the child abuse allegations were not proven
but were based solely on a “doctor’s unsubstantiated report” without
pictures. She further contends there was
no one who could have testified that she injured Lily. Her contentions are not supported, however,
by the facts on the record. There
Lily’s bruises taken on August 16, 2010.
Further, Dr. Sine, an expert in child abuse, evaluated Lily and opined
that she was physically abused on at least three occasions. Given his expert status and strong opinion,
there is no reason to believe he would not have testified if called. Additionally, Veronica admitted to being
Lily’s primary caretaker, making her the most likely perpetrator of the
abuse. More telling still, she initially
told Ms. Urena that Lily had no bruises when she left her with Ronald and Audra
on August 13. She testified, however, at
the jurisdictional hearing that Lily was injured several days before that when
she fell into the fireplace and that bruises were apparent at that time.
In determining whether a child has suffered serious
physical harm nonaccidentally pursuant to section 300, subdivision (a)
(subdivision (a)), the juvenile court evaluates the evidence by the
preponderance of the evidence standard.
(§ 355, Cal. Rules of Court, rule 5.684(f).) In light of the evidence of nonaccidental
abuse as discussed above, trial counsel would be hard pressed without compelling
evidence to the contrary to convince the juvenile court to dismiss a
subdivision (a) allegation.
Here, Veronica has failed to show what evidence trial
counsel could have but did not present that would have established a cause for
Lily’s bruising other than an act of child abuse by Veronica. Having failed to do so, Veronica’s claim of
ineffective assistance of counsel must fail.
Thus, we find no error.
On a final note, our denial of the writ petition does not
preclude Veronica from filing a section 388 petition to modify the juvenile
court’s prior order(s) on the grounds that there is new evidence or changed
circumstances and modification of the juvenile court’s order(s) would serve
Lily’s best interest.
The petition for extraordinary writ
is denied. This opinion is final
forthwith as to this court.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
