Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J513403, Elizabeth A. Riggs, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
HALLER, J.
Edna R. appeals an order denying her Welfare and Institution Code section 388 petition by which she requested custody of her 14-year-old daughter, E.M. Edna contends the court abused its discretion by denying her petition and asserts E.M.'s counsel did not provide effective assistance because he did not inform the court of E.M.'s preferences for placement. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When she was seven years old, E.M. was removed from Edna's care after law enforcement agents found 1,136 grams of methamphetamine, 1.10 pounds of marijuana, four handguns, a sawed off shotgun and chemicals used to make methamphetamine in the family home. Edna was arrested; she denied she had been operating a methamphetamine lab. On June 2, 2000, the San Diego County Health and Human Services Agency (the Agency) petitioned on E.M.'s behalf under section 300, subdivisions (b) and (g), alleging Edna was not providing a suitable home and the whereabouts of E.M.'s father were unknown. The court found the allegations of the petition true, ordered E.M. placed in relative care and ordered Edna to participate in reunification services.
E.M. was placed with her paternal grandparents (the grandparents). She enjoyed living with them, but struggled academically and emotionally and said she wanted to be with Edna. Edna was scheduled to be released from prison in July 2002, which was some months after the 18-month date. In prison Edna participated in a substance abuse program, 12-step meetings and a parenting class. At the 12-month hearing on August 1, 2001, the court continued E.M.'s placement with the grandparents, terminated services and ordered long-term foster care as the permanent plan.
E.M. continued to want to return to Edna's care. After Edna's release from prison she and E.M. had weekly visits. On September 19, 2003, Edna petitioned under section 388, requesting E.M.'s custody or, in the alternative, reunification services and unsupervised visits. At a hearing on December 8 the court ordered reunification services for Edna.
The social worker provided referrals to the Substance Abuse Recovery Management System (SARMS), and for therapy and parenting classes. There were reports that it was difficult to work with Edna at times because she would not take responsibility for her actions that had caused E.M.'s removal. By April 2004 she was no longer attending a SARMS program, and her therapist reported she had made no progress in therapy and had stopped attending therapy sessions.
In July 2004 police arrested Edna on charges of possessing a firearm and possessing a controlled substance while armed. She was incarcerated and sent to a drug rehabilitation program. In August the court terminated court-ordered services.
Edna participated in services while she was incarcerated and upon her release in May 2005, she entered a sober living program. Edna and E.M. had frequent visits. The grandparents said they were willing to become E.M.'s legal guardians, and on July 31 the court ordered guardianship as the permanent plan.
On July 6, 2007, Edna filed a new section 388 petition requesting custody of E.M. Edna said that she had been released from parole one year earlier, had completed services, was employed, had an appropriate residence for E.M. and could help her with her academic and behavior problems. On October 15 she filed an amended petition. Edna asserted she was drug free and had participated in family therapy with E.M., she and E.M. shared a bond, and E.M. wanted to live with her.
According to the social worker's report, Edna claimed to have completed services while she was incarcerated and said she stopped therapy only because the therapist wanted her and E.M. to have conjoint sessions, but the grandmother would not allow it. Edna said that in 2004 she had nearly completed a SARMS program before she was arrested on a parole violation, and she was returned to prison because she was homeless. Edna said E.M. was angry because she did not live with her and was having academic problems because the grandmother could not help her with her schoolwork. The grandparents told the social worker they did not support returning E.M. to Edna's custody because they did not believe Edna was stable or could provide for E.M.'s financial support. E.M.'s therapist said E.M. had expressed a desire to return to Edna. The Agency reported Edna's adult son, who has a criminal history and had recently been discharged from parole, was living in her home.
At the hearing on Edna's section 388 petition, Edna testified she had entered a drug treatment program during her most recent incarceration. She said she occasionally attended NA meetings when she felt frustrated. On cross-examination she denied she had ever used drugs and claimed she had never possessed firearms or chemicals to produce drugs. Edna said she had worked for the same employer for two years. She testified that she attended meetings at E.M.'s school and conjoint therapy with E.M., helped her with her homework and bought things for her when she visited on weekends. She said she could provide better discipline and help for E.M. than the grandparents could provide.
The court denied the petition, finding Edna had not shown changed circumstances. It commented on Edna's credibility and noted she had not sought therapy although E.M.'s therapist had recommended she do so. It also expressed concern about Edna's son who lived in her home. It continued the guardianship and terminated jurisdiction.
DISCUSSION
I
Edna contends the court abused its discretion by denying her section 388 petition. She argues she showed a change of circumstances and that it was in E.M.'s best interests to be returned to her home.
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court . . . . [¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(e); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
The court did not abuse its discretion by finding Edna did not show a change of circumstances. The circumstances that led to E.M.'s removal were extremely serious. In Edna's home law enforcement agents found guns and numerous bags of drugs plus chemicals used to make methamphetamine, including two gallons of muriatic acid on a table in the living room. The agent remarked there was a very strong odor in the home, and the soles of boots worn by one agent were destroyed by the chemicals on a rug inside the house.
As changed circumstances, Edna claimed she was not using drugs, had an appropriate home for E.M., had stable employment and had attended therapy with E.M. However, she did not show she had dealt with the issues that led to the dependency. Although Edna said she had participated in drug treatment while incarcerated and had gone to NA meetings, she also testified she had never used drugs, she continued to deny she had ever possessed chemicals to manufacture drugs and she insisted the firearms found in her possession did not belong to her. The social worker and Edna's therapist had both remarked about difficulties working with her because she did not accept responsibility for her actions that had resulted in E.M.'s dependency. Edna had never completed therapy and in fact attempted to persuade her therapist to write a letter stating she had done so although this was not the case. Also, she had not completed the SARMS program as ordered by the juvenile court. The court did not err in finding that Edna did not show changed circumstances.
Moreover, Edna did not show that returning E.M. to her care would serve E.M.'s best interests. The grandparents told the social worker they believed Edna should continue to be a part of E.M.'s life, but Edna was not sufficiently stable to assume custody. The evidence indicated Edna did not accept responsibility for E.M.'s removal from her custody and she had not dealt with the protective issues that led to the dependency. The court did not abuse its discretion by denying Edna's petition.
II
Edna asserts E.M. received ineffective assistance of counsel because her attorney did not inform the court of her placement preferences and advocated a position directly contrary to her expressed wishes.
Assuming that Edna has preserved this issue for appeal, we hold she has not shown ineffective assistance of counsel.
The unique duties and responsibilities of counsel appointed for children in dependency cases are explained in section 317.
"A primary responsibility of any counsel appointed to represent a child pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child." (§ 317, subd. (c).)
Counsel for a child must represent the child's best interests and in doing so must investigate the facts and may make recommendations to the court concerning the child's welfare. (§ 317, subd. (e).) If the child is four years old or older, counsel must interview the child to determine the child's wishes, and must also assess the child's well-being and advise the court of the child's wishes. (Ibid.) Section 317, subdivision (e) also states,
"[c]ounsel for the child shall not advocate for the return of the child if, to the best of his or her knowledge, that return conflicts with the protection and safety of the child. . . . The court shall take whatever appropriate action is necessary to fully protect the interests of the child."
In In re Zamer G. (2007) 153 Cal.App.4th 1253, 1266-1267, the court emphasized the Legislature has expressly provided that the best interests of the child, not his or her wishes, are to determine the outcome of the case. The court stated: "[T]he paramount duty of counsel for minors is not zealously to advocate the client's objectives, but to advocate for what the lawyer believes to be in the client's best interest, even when the lawyer and the client disagree." (Id. at p. 1265.)
The record indicates that throughout the case E.M.'s attorney met with E.M. on a regular basis. During the hearing on Edna's section 388 petition, E.M.'s counsel joined with the Agency by arguing the petition should be denied in that Edna had not completed any of the requirements of her service plan, she denied she had ever used drugs and E.M. was in a stable placement with the grandparents. Counsel's position against E.M.'s return was supported by substantial evidence. He properly advocated for her best interests as required by section 317, subdivision (e). Also, the court would have been well aware that E.M. wished to return to live with Edna since the social worker regularly noted this fact in her reports.
Moreover, Edna has not shown prejudice. Even had E.M.'s counsel specifically informed the court at the hearing that E.M. desired to return to Edna, it is not likely the court would have ordered her return. The court found Edna had not shown changed circumstances and noted her lack of credibility and the fact she had not enrolled in an on-going treatment program and had never enrolled in therapy. Edna has not shown E.M.'s counsel provided ineffective assistance.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.