Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Super. Ct. Nos. 06CEJ300085-2 & 06CEJ300085-3
Therese D., in pro. per., for Petitioner.
No appearance for Respondent.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Gomes, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter S. and her son P. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
This case arises from a contested 18-month review hearing conducted in January 2008 at which the juvenile court terminated reunification services and set a section 366.26 hearing as to then 10-year-old S. and 6-year-old P. At the heart of this case are two children so damaged by their mother’s behavior that they do not want to return to her custody and a mother who, despite technical compliance with a plan for reunification, cannot provide her children the safety and stability they require. Petitioner argues adequate weight was not given to her successes, in part as a result of trial counsel’s ineffectiveness. She also minimizes the extent to which the children suffered while in her care. She seeks either continued services or termination of dependency proceedings and return of the children to her physical custody.
In June 2006, then eight-year-old S. and five-year-old P. were removed from petitioner’s custody by the social services department (department) because of the deplorable conditions of the family home. There was no electrical power or running water and the home was cluttered and dirty with rotten food, clothes and trash. In addition, petitioner smoked marijuana in the children’s presence and allowed them access to drug paraphernalia. Petitioner’s marijuana use and the family’s substandard living conditions were well known to the department who received numerous referrals of suspected child neglect over the years. The children’s father J. was not living with the family but, according to S. knew of their circumstances.
The children’s teenage sister was also detained but reached majority during the dependency proceedings. Consequently, dependency as to her was dismissed in August 2007.
The juvenile court ordered the children detained in June 2006 and ordered the department to refer both parents for a parenting course, substance abuse evaluations, and random drug testing. The department was also ordered to refer the parents as well as the children for mental health evaluations. The children were placed together in licensed foster care.
In July 2006, petitioner was evaluated for substance abuse. She admitted a 29-year history of marijuana use and 12 years of drinking alcohol to intoxication. She also described persecutory delusions, causing the evaluator to suspect that she was suffering either a delusional disorder or schizophrenia. She described being manipulated by music being played in the mall. She perceived the music as a form of governmental mind control designed to steal and molest children. She also reported that the government placed cameras in the trees to spy on people and that the cameras were killing the birds. She stated she was arrested and involuntarily committed after she pulled the power cords from under a building at a construction site. At the time, she believed that the construction site was a front for either terrorists or child molesters and that they were fitting the location for a massive bombing of poor people to steal their children to molest.
With respect to petitioner’s substance abuse, the evaluator recommended outpatient drug treatment. However, the evaluator also recommended petitioner undergo a psychological evaluation to determine her suitability for outpatient treatment. It was also recommended that visits with the children be closely monitored in light of petitioner’s delusions.
The juvenile court adjudged the children dependents of the court and, at the dispositional hearing, ordered a plan of reunification that added a psychological evaluation to the services already ordered. The court also ordered reasonable supervised visitation between petitioner and the children. The court did not order services for J., concluding services for him would not benefit the children. (§ 361.5, subd. (a).)
J. did not appeal the juvenile court’s dispositional order.
In August 2006, petitioner was evaluated by a psychologist who concluded she suffers from a moderate delusional disorder with paranoid features. The psychologist recommended a medication evaluation, individual therapy, and drug treatment. The psychologist cautioned petitioner may not “develop a high degree of insight as to her own psychological problems, but medication and treatment may change that.”
In October 2006, petitioner began dual-diagnosis substance abuse treatment and completed all phases of the program in April 2007. She regularly attended 12-step meetings, consistently tested negative for drugs and, by all reports, was motivated to maintain sobriety and to get her life back on track. She also completed a parenting class. However, petitioner had not progressed to unsupervised visits with the children and contact with her was taking an emotional toll on the children. S., who had been in therapy since August 2006, was fearful of returning to petitioner’s custody. She reported nightmares and fear of being emotionally and physically abused by petitioner. In addition, petitioner played upon S.’s yearning to see J. by having S.’s older sister tell her that if S. told the social worker she wanted to return to petitioner’s custody, petitioner would have J. live with them. Petitioner also adamantly opposed psychotropic medication ordered by the court, which vastly improved S.’s behavioral and emotional functioning. In addition, P., who was not initially recommended for individual therapy, was referred for therapy in May 2007 because he was becoming increasingly clingy and anxious. During therapy, P. shared his fear of returning to petitioner’s custody because she yelled, threw things and hit him with a wooden spoon.
In light of the detriment petitioner continued to pose to the children and the improbability that the family could reunite, the department recommended the court terminate petitioner’s services. Further, given the care provider’s willingness to provide a permanent home for the children, the department also recommended the court proceed to permanency planning.
Petitioner challenged the department’s recommendations, and the court conducted the contested hearing over two sessions in January 2008. Petitioner testified and admitted to yelling at the children, throwing a hairbrush at the wall and accidentally hitting S. and smothering S. with affection but claimed she had learned better ways of parenting through her program. She denied hitting P. with a wooden spoon and neglecting the children. She also testified that she and the children interacted well during visitation and that her relationship with them was good.
S. and P.’s therapists also testified. S.’s therapist testified that S. was not attached to petitioner as evidenced by her avoidance of and even revulsion by physical contact with petitioner. S. told the therapist that petitioner’s hugs “hurt” her. S.’s therapist believed it would be damaging to S. if she were returned to petitioner’s custody. Similarly, P.’s therapist opined that P. would be emotionally damaged if returned to petitioner’s custody. The therapist testified that P. expressed fear that petitioner would hit him if he were in her care.
Following testimony, petitioner’s attorney submitted the matter without argument and requested continued therapeutic visitation and a bonding study. The court continued the matter for its ruling.
Before issuing its ruling, the court identified the reports and letters it considered in making its decision. The court acknowledged petitioner’s efforts and sincere desire to reunify with the children. However, the court concluded that petitioner was still minimizing the damage she caused her children and that it would be detrimental to return them to her care. The court further found the department provided petitioner reasonable services and that continuing services would not serve the children’s best interests. Consequently, the court terminated petitioner’s reunification services and set a section 366.26 hearing. The court also granted petitioner’s attorney’s request for continued visitation and a bonding study. This petition ensued.
DISCUSSION
In hopes of a second chance at convincing a court that she should be granted custody of her children or, at least, continued services, petitioner addresses the juvenile court’s synopsis of the case and reasoning behind its ruling contained in the reporter’s transcript for that hearing. To the extent that she rebuts any of the evidence before the court or seeks a reweighing of that evidence, she is barred from doing so because, as a review court, we can not reweigh the evidence or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Nor can we review any evidence that was not before the juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
With those principles in mind and liberally construing the petition, the only cognizable issues for our review are whether trial counsel was ineffective and whether the court properly refused to return the children to petitioner’s custody and terminated reunification efforts.
A. Ineffective Assistance of Trial Counsel
A petitioner asserting ineffectiveness of counsel in juvenile dependency proceedings must prove both deficient performance based on an objective reasonable standard and prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Counsel’s performance is deficient if it “‘fell below an objective standard of reasonableness … under prevailing professional norms.’” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) Moreover, appellant has suffered prejudice if, absent counsel’s errors, there is a reasonable probability of a more favorable outcome. (Id. at p. 218.)
Petitioner’s claim of ineffective assistance of counsel revolves around trial counsel’s failure to introduce evidence favorable to her case, most notably the opinion of a visitation therapist who supervised visitation between petitioner and the children on five occasions in September and October 2007. In a letter, which the juvenile court reviewed, the visitation therapist positively described petitioner’s interaction with the children. At the hearing, S.’s therapist was asked if her opinion of petitioner’s failure to read S.’s cues would change if she heard testimony that the visitation therapist opined that S. was more receptive to petitioner and the visits. S.’s therapist responded that she would respect the opinion but it would not change her opinion based on her own evaluation and observations.
To the extent petitioner argues trial counsel was ineffective for not subpoenaing the visitation therapist’s testimony, she fails to show how that was unreasonable since the court had her letter for review. Further, petitioner fails to show how she was prejudiced since the court clearly weighed more heavily the opinion of S.’s therapist with respect to the quality of visitation and petitioner’s relationship with S. To that end, petitioner also challenges the credibility of the therapists and the undue weight the court gave to their testimony. As stated previously, this court can not reweigh the evidence. Additionally, this court does not judge the credibility of witnesses. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
B. Detriment
At the 18-month review hearing, the juvenile court must “order the return of the child to the physical custody of his or her parent … unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent … would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.22, subd. (a).) Given the juvenile court’s broad discretion in ruling at the 18-month review hearing, we will uphold the juvenile court’s finding of detriment if it is supported by substantial evidence. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) In determining whether substantial evidence supports the juvenile court’s finding, we view the evidence in a light most favorable to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court’s ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Given the facts and circumstances of this case, little needs to be said with respect to the court’s finding of detriment. The damage S. and P. suffered while in petitioner’s care and their fear of returning to her is sufficient evidence that a return to her custody would be detrimental to their physical and emotional safety.
C. Termination of Reunification Services at the 18-month Review Hearing
Since the Legislature has placed a statutory 18-month limitation on the provision of reunification services, the juvenile court has little choice at that juncture but to terminate services and proceed to permanency planning unless a continuance of services would serve the child’s best interest. (§ 366.22, subd. (a); Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) In this case, neither the appellate record nor petitioner’s arguments before this court convince us that S. and P.’s best interest would be served by a continuation of services. Consequently, we will affirm the juvenile court’s orders.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.