T.B. v. Super. Ct.
Filed 6/20/13
T.B. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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.B.,
Petitioner,
v.
THE SUPERIOR COURT OF TUOLUMNE
COUNTY,
Respondent;
TUOLUMNE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in
Interest.
F067013
(Super.
Ct. No. JV7219)
A.A.,
Petitioner,
v.
THE SUPERIOR COURT OF TUOLUMNE
COUNTY,
Respondent;
TUOLUMNE COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in
Interest.
F067038
(Super.
Ct. No. JV7219)
THE COURT
ORIGINAL
PROCEEDINGS; petition for
Timothy B.,
in pro. per., for Petitioner Timothy B.
Alexandra
A., in pro. per., for Petitioner Alexandra A.
No
appearance for Respondent.
Sarah
Carrillo, County Counsel, for Real Party in Interest.
-ooOoo-
Timothy B.
and Alexandra A. in propria persona seek extraordinary writ review of the
juvenile court’s orders issued at a contested six-month review hearing (Welf.
& Inst. Code, § 366.21, subd. (e))
section 366.26 hearing as to their one-year-old daughter Madison.
County Department of Social Services (department) contained false allegations,
trial counsel was ineffective, and the juvenile court’s orders were
erroneous. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
Timothy and
Alexandra are the parents of Madison, the subject of this writ petition. In June 2012, the department received a
report Timothy and Alexandra were neglecting Madison. Specifically, the reporting party (RP) stated
Madison tested positive for THC (tetrahydrocannabinol) at birth and Alexandra
was seeking prescription medication from several doctors. The RP also reported Timothy yelled at then
one-month-old Madison and Alexandra played a computer game 13 hours a day and
ignored Madison’s crying.
The
department investigated the neglect allegations over the next two months. Alexandra admitted being addicted to opiates
and agreed to random urinalysis.
However, she failed to provide urine samples and avoided taking Madison
to the doctor for fear of being tested for opiates. During an unannounced home visit in July, Alexandra
provided a diluted urine sample. Timothy
subsequently admitted supplying Alexandra with Percocet and giving her a
dilution kit to conceal her use of opiates.
In August
2012, the department took Madison into protective custody and placed her with a
non-related extended family member in Tuolumne County. The department also filed a dependency
petition on her behalf alleging Alexandra and Timothy placed her at a
substantial risk of harm because Alexandra abused drugs and Timothy enabled
Alexandra. As to each parent, the
petition cited specific facts discovered during the investigation to support
the allegations.
Timothy and
Alexandra appeared at the detention hearing.
The juvenile court appointed counsel for them and ordered Madison
detained after Timothy and Alexandra’s attorneys submitted the matter on the
detention report.
Two days
after the detention hearing, Timothy contacted the social worker multiple times
stating he wanted Madison returned to his custody. He did not understand why she was detained,
claiming he did not have a drug problem and did not neglect Madison. The social worker reminded him he provided
Alexandra non-prescribed opiates.
In its
report for the jurisdictional hearing, the department recommended the juvenile
court order Timothy and Alexandra assessed for dependency drug court because of
Alexandra’s opiate addiction and Timothy’s criminal history involving illegal
drug use.
In
September 2012, Timothy and Alexandra appeared at the jurisdictional hearing
with counsel. The juvenile court advised
them of their right to a hearing at which they could challenge the allegations
in the petition by presenting evidence, subpoenaing witnesses and
testifying. The juvenile court also
explained they could waive a hearing and submit on the department’s report. If they did so, the court said it would find
the allegations true, take jurisdiction over the case and proceed to
disposition. Timothy and Alexandra
expressed their understanding of their right to a hearing and waived their
right. At the conclusion of the hearing,
the juvenile court assumed jurisdiction over Madison, referred Timothy and
Alexandra to dependency drug court and set the matter for disposition.
In its
report for the dispositional hearing, the department recommended the juvenile
court order Timothy and Alexandra to participate in a reunification plan that
required them to complete a specific parenting program, successfully complete
the dependency drug court substance abuse treatment program, participate in the
12-step program, and in individual counseling.
The
department also reported Timothy’s mother, Jackie, expressed interest in having
Madison placed with her. However, Jackie
lived in Kansas and could not provide regular visitation during
reunification. Therefore, the department
stated it would submit an ICPC (Interstate Compact on Placement of Children) if
Timothy and Alexandra did not reunify with Madison.
Prior to the dispositional hearing,
Timothy was evaluated and determined not to be a candidate for dependency drug
court. Consequently, the department
revised his reunification plan to exclude the dependency drug court
requirements. His revised case plan
required him to complete mental health and substance abuse assessments and
participate in any treatment recommended, complete either of two specific
parenting programs, and submit to random drug testing.
In October
2012, the juvenile court conducted the dispositional hearing. Timothy and Alexandra appeared and their
attorneys submitted the matter. The
juvenile court ordered them to complete their reunification plans and set a
six-month review hearing for March 2013.
Timothy and Alexandra did not appeal from the juvenile court’s
dispositional orders.
In early
November 2012, Timothy stated he and Alexandra wanted their case transferred to
Kansas. The day before, Alexandra was
given Dilaudid for medicinal purposes while at the hospital. She took the medication knowing it violated
the dependency drug court’s order. Two
days later, she tested positive for methadone and hydrocodone.
The dependency drug court ordered
Alexandra to appear. She failed to do
so. Consequently, in January 2013, she
was terminated from the program.
In January 2013, Jackie told the
social worker she paid for Timothy and Alexandra to fly to Kansas and they
lived with her for approximately a week.
During that week, she drove Alexandra to a 28-day drug treatment
facility but Alexandra refused to check into the program. According to Jackie, she had no further contact
with them and did not know their whereabouts.
In early February 2013, the
department requested an ICPC to place Madison with Jackie. Later that month, Timothy contacted social
worker Deena Garman by telephone and said he and Alexandra married in
January. Timothy stated he had no
intention of participating in services and believed Madison was “illegallyâ€
removed from his care.
In its
report for the six-month review hearing, the department recommended the
juvenile court terminate reunification services for Timothy and Alexandra and
set a section 366.26 hearing. The
department reported Timothy and Alexandra were minimally compliant with their
services plan until they stopped participating in early November 2012, which
was also when they had their last visit with Madison.
In March
2013, at the time set for the six-month review hearing, the juvenile court set
a contested hearing for April 2013.
Alexandra informed the juvenile court that she was pregnant and could
not travel for the hearing. The juvenile
court granted Timothy’s request to testify on her behalf.
In April 2013,
the juvenile court convened the contested six-month review hearing. Timothy personally appeared with counsel and
Alexandra appeared telephonically.
Deena Garman testified her first
and only contact with Timothy was his telephone call to her in February
2013. During their conversation, Timothy
said he did not intend to participate in services because he did not believe
the allegations were true.
Garman
further testified she did not refer Timothy for services in Kansas and did not
know if he participated in services there.
Timothy
testified he arrived in Kansas in early December 2012 and missed two weeks of
visits with Madison prior to his departure and had not seen her since. He said he traveled 16 hours by bus from
Kansas to the hearing. He considered
taking the bus to visit Madison but was told it would take some time to
arrange.
Timothy
further testified he and Alexandra were not drug testing or taking parenting
classes. They attended five to six
12-step meetings weekly, however, he could only provide proof of attendance
from March 21. In January 2013, they
began family counseling and attended four sessions. In addition, they each had an individual
therapist. Timothy began individual
therapy in March 2013 and attended one session.
He did not tell Garman they were participating in services because she
never asked.
Timothy testified he and Alexandra
did not trust the social workers because they manipulated and fabricated facts
to “meet their agenda.†He and Alexandra
wanted their case transferred to Kansas.
On
cross-examination, Timothy was asked if he understood Madison was removed
because of Alexandra’s substance abuse and inability to provide proper care and
his lack of insight into her substance abuse.
He replied, “No, I never understood them.†“Child Welfare Services has been very
negligent in even proving that.†He was
also asked whether he understood the case plan was intended to address the concerns
that led to Madison’s removal. He
refused to answer the question, invoking his right under the Fifth
Amendment. He also invoked his
kept informed of Madison’s progress. The
juvenile court informed Timothy he did not have a Fifth Amendment right not to
answer the questions and all of his testimony would be stricken if he persisted
in asserting the right.
Following
testimony, Timothy’s attorney told the juvenile court Timothy wanted to
represent himself during argument.
Timothy questioned the juvenile court’s basis for jurisdiction and
wanted a chance to argue it as he did not believe his attorney had properly
done so. The juvenile court allowed
Timothy to present closing argument with the understanding that jurisdiction
and disposition were not relevant.
After the
matter was submitted, the juvenile court found Timothy and Alexandra failed to
regularly participate in their reunification plans and made “little or no
progress …†and terminated their reunification services. In so doing, the juvenile court reminded them
it explained the jurisdictional and dispositional proceedings in detail,
including the ramifications of waiving their right to a contested
jurisdictional hearing and of failing to comply with their reunification
services. The juvenile court
acknowledged they participated in services in Kansas but stated the services
were not approved. Further, at a time
when they should have been establishing a safe family environment for Madison,
the juvenile court stated, they “evaporated into thin air.â€
The
juvenile court set a section 366.26 hearing to select a permanent plan for
Madison. This petition ensued.
DISCUSSION
Timothy and
Alexandra allege error on the part of the juvenile court, the department and
trial counsel throughout the dependency proceedings beginning with
detention. They do so in list format
with citation to the record but do not identify and develop specific legal
arguments as required under California Rules of Court, rule 8.452(b)(2). Consequently, their petition is technically
inadequate for review. However, we
liberally construe writ petitions in favor of their sufficiency. (Cal. Rules of Court, rule 8.452(a)(1).) In this case, we construe the petition as
challenging the juvenile court’s order terminating reunification services and
the effectiveness of trial counsel at the contested six-month review hearing.
We limit our review to the juvenile
court’s findings and orders at the contested six-month review hearing because
all previous findings and orders, including the jurisdictional findings, were
reviewable by direct appeal from the dispositional order. Since Timothy and Alexandra did not appeal,
they forfeited their right to appellate review of those prior rulings. For the same reason, they also forfeited appellate
review on the issue of ineffectiveness of counsel arising from any hearing
prior to the contested six-month review hearing. (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1159-1160.)
Termination of
Reunification Services
Section
366.21, subdivision (e) governs the procedure for children like Madison who
were under three years of age when they were initially removed from parental
custody and who are not being returned at the six-month review hearing. Under the statute, the juvenile court may
terminate reunification services and schedule a section 366.26 hearing if it
finds by clear and convincing evidence the parent failed to regularly
participate and make substantive progress in a court-ordered treatment
plan. (§ 366.21, subd. (e).)
Here, the juvenile court found
Timothy and Alexandra made “little or no progress†in their court-ordered plans
and substantial evidence supports that finding.
In the months before they left for Kansas, Timothy did not participate
in any of his services except some drug testing and Alexandra attempted drug
treatment but quickly relapsed. They
contend they participated in services in Kansas, however, the record does not
support their claim. To the contrary,
Timothy testified they were not drug testing or taking parenting classes. They participated in a few counseling
sessions and could only produce attendance at 12-step meetings since March
21. On that evidence, the juvenile court
could find they failed to regularly participate and make substantive progress
in a court-ordered treatment plan.
Notwithstanding the above, section 366.21, subdivision (e)
required the juvenile court to continue reunification services for Timothy and
Alexandra if it found they were not provided reasonable services or there is a
substantial probability Madison could be returned to their custody by the
12-month review hearing.
Timothy and Alexandra do not expressly challenge the
reasonableness of services provided.
They do, however, fault Ms. Garman for not referring them for services
in Kansas. To the extent they claim Ms.
Garman’s efforts to assist them in reunifying were unreasonable, their claim
lacks merit for two reasons. First,
Timothy and Alexandra had a duty to maintain contact with the department. Instead, they left the county without
notifying the department. Ms. Garman’s
first contact with them was in late February 2013, five months into the
reunification period. Secondly, they
cite no authority placing the responsibility on the department to arrange
services out-of-state under these circumstances.
Further, given Timothy and Alexandra’s conduct, there is no
reason to find a substantial probability Madison could be returned to their
custody after another six months of services.
In order to
find a substantial probability of return, the juvenile court must make all
three of the following findings: (1) the parent consistently and regularly
contacted and visited the child; (2) the parent made significant progress in
resolving the problems that led to the child’s removal from the home; and (3)
the parent demonstrated the capacity and ability to complete the objectives of
the treatment plan and provide for the child’s safety, protection, and physical
and emotional well-being.
(§ 366.21, subd. (g)(1)(A)-(C).)
In this
case, Timothy and Alexandra made virtually no progress, demonstrated an
unwillingness to cooperate with the department to facilitate reunification, and
opted to leave the state rather than remain local so they could maintain
contact with Madison.
We conclude
substantial evidence as set forth above supports the juvenile court’s order
terminating Timothy and Alexandra’s reunification services.
Ineffective Assistance of Counsel
Timothy contends his attorney was ineffective for not
disputing the original allegations. We disagree.
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.)
In this case, Timothy fails to show how his attorney was
deficient. Timothy believed he could
litigate the original allegations at the six-month review hearing and
apparently insisted his attorney do so even though the juvenile court advised
Timothy any such evidence was not relevant.
Timothy’s attorney was not deficient for declining to
introduce irrelevant evidence. Thus,
Timothy’s claim of ineffective assistance of counsel fails.
We find no error and deny the petition.
DISPOSITION
The petitions for extraordinary
writ are denied. This opinion is final
forthwith as to this court.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
