Opinion
NOT TO BE PUBLISHED
petition for extraordinary writ review. Super. Ct. No. 27857, Harry L. Jacobs, Commissioner.
A.S., in pro. per., for Petitioner.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
No appearance for Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
Petitioner (mother) in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter M. We will deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
The incident giving rise to dependency proceedings occurred in early July 2008. M., just two weeks shy of her third birthday, and petitioner were at a swimming pool located at an apartment complex. Witnesses stated petitioner was trying to teach M. to swim by repeatedly throwing her into the pool and encouraging her to paddle toward her. Instead, M. went under water, frantically grabbed at the sides of the pool and vomited water. Petitioner was overheard to say, “This bitch is gonna learn how to swim if it kills her.” A witness intervened and took M. to the witness’s apartment for a nap. Following a 20-30 minute nap, M. woke up shaking and vomiting and her eyes were rolling back in her head. Petitioner waited several hours before taking M. to the hospital. By that time, M. was losing consciousness.
M. was admitted to the hospital and diagnosed with cerebral edema, water intoxication and altered mental state. However, petitioner’s abuse did not stop with M.’s admission to the hospital. A nurse saw her spank M. and put her roughly in the crib. A speech therapist reported hearing the sound of slapping in M.’s room on two separate occasions on the same day. Someone close to the family stated petitioner beat M. with a belt and hit her in the face because she did not eat. Petitioner also picked M. up by the hair causing bald spots.
The social services agency (agency) took M. into protective custody and filed a dependency petition alleging M. came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse) and (i) (cruelty). The juvenile court ordered M. detained pursuant to the petition and set a combined jurisdictional/dispositional hearing (combined hearing) for August 2008. In its report for the combined hearing, the agency recommended the court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(5) because of the severity of M.’s injuries.
The combined hearing was continued and conducted as a contested hearing in December 2008. Petitioner testified she and others at the pool were tossing M. back and forth but stated they were doing that with all the children. She denied that M.’s head was going under the water and that she held M.’s head under the water. She denied spanking M. at the hospital but acknowledged patting her on the “butt.” She denied cussing at M., hitting her with a belt, hitting her in the face or picking her up by the hair. She testified the allegations she abused M. came from her ex-boyfriend’s mother who was angry because petitioner told her own mother that her ex-boyfriend hit her. M.’s father, who was a non-offending parent in this case, also testified.
At the conclusion of the hearing, the juvenile court adjudged M. a minor child described by section 300, subdivisions (a), (b), (e) and (i), ordered her removed from the custody of both parents, denied both parents reunification services as recommended and set a section 366.26 hearing. This petition ensued.
M.’s father also filed a writ petition from these proceedings (F056578), which we denied.
DISCUSSION
Petitioner argues her attorney did not present key information pertaining to her case and did not prepare her for testifying. She does not specify what key information was not presented or explain how her attorney could have better prepared her for taking the stand. To the extent she raises a claim of ineffective assistance of counsel, her claim fails for reasons we explain below.
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. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that but for counsel’s performance, the juvenile court would have granted her reunification services.
In this case, the juvenile court denied petitioner reunification services pursuant to section 361.5, subdivision (b)(5) (subdivision (b)(5)), which allows the juvenile court to deny reunification services to a parent whose conduct brought the child within the jurisdiction of the court under section 300, subdivision (e) (subdivision (e)). There was uncontroverted medical evidence that M. sustained severe injuries, warranting the subdivision (e) finding.
Once the juvenile court finds a basis for denying a parent reunification services pursuant to subdivision (b)(5), it is prohibited from ordering reunification services unless it finds “services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.” (§ 361.5, subd. (c).) While the agency has the duty of advising the court whether reunification is likely to be successful and whether failure to provide reunification is likely to be detrimental to the child (§ 361.5, subd. (c)), it is the parent’s burden to demonstrate family reunification services are likely to prevent reabuse or that denial of services would be detrimental to the child. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163-164.)
In ruling on the case, the juvenile court stated, “this is one of the most call[o]us, cruel examples of neglect and abuse I’ve ever seen. Terrible.” Under the circumstances, there is no reason to believe the juvenile court was inclined to rule differently than it did or that petitioner’s attorney could have persuaded it to do so. Consequently, petitioner’s claim of ineffective assistance of counsel fails.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.