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Brandy S. v. Superior Court of Fresno Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 24, 2012
Super. Ct. No. 07CEJ300240-3 (Cal. Ct. App. Jan. 24, 2012)

Opinion

F063561 Super. Ct. No. 07CEJ300240-1 Super. Ct. No. 07CEJ300240-2 Super. Ct. No. 07CEJ300240-3 Super. Ct. No. 07CEJ300240-4

01-24-2012

BRANDY S., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent, FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

Brandy S., in pro. per., for Petitioner.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION


THE COURT

Before Cornell, Acting P.J., Detjen, J. and Franson, J.

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane Cardoza, Judge.

Brandy S., in pro. per., for Petitioner.

No appearance for Respondent.

Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

Brandy 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 four children, two sons and two daughters, ranging in age from ten years to one year respectively. We deny the petition.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL SUMMARY

On January 10, 2011, Fresno Police Officers William Wyatt and Matt Pantages responded to a report of possible child abuse at Brandy's residence where she lived with her live-in boyfriend, John, John's brother, William, and her two sons and two daughters. John is the father of Brandy's infant daughter. When Officer Wyatt arrived, John flagged him down and told him he needed to go to jail. He said he was alone with Brandy's three-year-old son, David, on January 7 and back-handed David near his left eye after the child made him mad. David's eye began to swell and, by the next day, his face was bruised. On January 9, John tried to reduce David's facial swelling by applying cold and hot compresses on his eye. On the fourth application of the hot compress, David complained that it hurt. When Brandy returned to the residence, she and John argued. John pushed her to the ground and choked her until William intervened. John stated that Brandy tried to stop the abuse and contact the police but he prevented her from doing so.

Brandy told Officer Pantages that she finally had the courage to call the police after learning that John assaulted David multiple times over the previous couple of days. She said she did not call the police right away because John was abusive. She said he unplugged the telephone to prevent her from calling the police and prevented her from leaving the residence. She further stated that John told her on the morning of January 9 that he hurt David "very bad" the day before. John told Brandy that it was the "worst" he had ever hurt David and that he needed help. Brandy said she knew that John left marks on David in the past but they were never that bad. Brandy said that that morning, John was giving David a bath and she could hear John yelling so she ran into the bathroom to tell John she was calling the police. John had placed David's penis on the rim of the toilet bowl and slammed the toilet lid down. At that point, Brandy was no longer afraid. She ran to the neighbor's apartment and called the police.

Officer Wyatt contacted the Fresno County Department of Social Services (department) who took three of the children into protective custody for placement. David was transported to the hospital for evaluation and John was arrested.

Officer Pantages and Brandy were present with David at the emergency room during his examination. Brandy told the doctors that she was afraid of John and could not get away from him to report the abuse. She also told them, however, that she left the apartment freely, leaving the children in John's care. She said that morning she took the older children to school and stopped to buy milk. Officer Pantages asked Brandy why she did not call the police when she was out but she did not respond. Also, during David's examination, the medical staff commented on the fact that David would not cry during painful parts of the examination even though he was clearly in pain. Officer Pantages opined, based on David's response, that he had a high tolerance for pain for a child his age and that he appeared conditioned not to make noise or cry. As part of David's medical evaluation, he underwent bone surveys and X-rays, which did not reveal any new or healing fractures. He was, however, diagnosed with bilateral periorbital edema, second degree burns, facial contusions and genital blunt trauma and admitted to the hospital.

On January 11, 2011, a social worker conducted several interviews, including one with William. William stated that John had untreated psychiatric problems and had uncontrolled anger. He said he had seen John abuse David in the past as had Brandy. He did not believe the children should be returned to Brandy's custody as he felt she was as much to blame as John for David's abuse.

Following its investigation, the department filed a dependency petition pursuant to section 300, alleging that David suffered severe physical abuse and cruelty from which Brandy failed to protect him and for which she failed to obtain timely medical care and that the other children were at risk of suffering similar neglect and abuse. (§ 300, subds. (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse), (i) (cruelty) & (j) (abuse of sibling).) The petition also listed Daniel H. as the father of petitioner's three oldest children. At the time of the children's removal, and throughout these proceedings, David H. was incarcerated in a state psychiatric facility.

In its report for the detention hearing, the department informed the juvenile court that in June 2007, Brandy and newborn David tested positive for methamphetamine and that Brandy began receiving family maintenance services. Her services consisted of substance abuse treatment, random drug testing, and parenting and mental health services. She failed to comply, however, by using drugs while the children were in her care. Consequently, the juvenile court ordered her three oldest children detained and exercised its dependency jurisdiction. In October 2008, Brandy completed drug treatment and, in June 2009, the juvenile court dismissed its dependency jurisdiction.

In January 2011, the instant juvenile court ordered Brandy's four children detained and appointed Patricia Pinto from the Fresno Dependency Office to represent her. The court also authorized the department to arrange supervised visitation for Brandy and to offer Brandy and John parenting classes, evaluations and treatment for substance abuse, mental health issues and domestic violence, and random drug testing.

In June 2011, the juvenile court conducted the jurisdictional hearing. Brandy was present and represented by Ms. Pinto. The juvenile court received an offer of proof signed by the parties that Physician's Assistant Jason Elliott, MS, PA-C, was qualified to render an opinion on the nature and extent of David's traumatic injuries including the involvement of external swelling and deep bruising and that Mr. Elliott would testify that David sustained significant external swelling to his left eye and deep bruising to his groin and scrotum.

The juvenile court also accepted Brandy's "Waiver of Rights-Juvenile Dependency" form (JV-190) in which she indicated her desire to submit to jurisdiction on the basis of the social worker's report. Brandy initialed boxes following the form's explanation of each of the rights she would be giving up, i.e., the rights to a trial, to confront witnesses and the social worker who prepared the report, to testify on her behalf, to present evidence, and to invoke her privilege against self-incrimination. Brandy also initialed boxes following a listing of each of the consequences of her decision to submit on the department's report, i.e., that the court would likely find the petition to be true; and if the petition was found to be true and the court declared the child to be a dependent of the court, that "the court may assume custody of the child, and under certain circumstances, it is possible that no reunification services will be offered or provided." Further, Ms. Pinto signed a "Declaration of Attorney" that stated she had "explained and discussed with [her] client the rights and consequences of submitting the petition on the report."

At the conclusion of the jurisdictional hearing, the juvenile court adjudged the children dependents of the court and set the dispositional hearing for July 2011. In its dispositional report, the department informed the juvenile court that the children were placed together in foster care and recommended the juvenile court deny Brandy, John and David H. reunification services.

The dispositional hearing was continued and conducted in October 2011. Brandy appeared represented by Fresno Dependency Office attorney Sam Kyllo. Counsel for the parties presented their cases through argument only. County counsel recommended the juvenile court deny Brandy reunification services pursuant to section 361.5, subdivision (b)(5) and (6) and deny John and David H. reunification services on other statutory grounds. Mr. Kyllo argued the juvenile court should provide Brandy reunification services because it would serve the children's best interests. He cited her motivation to complete services and positive bond with the children and the fact that she regularly visited them. He also asked the court to consider that Brandy was a battered woman and that her relationship with John did not begin as an abusive relationship but that it evolved into such a relationship over time. Minors' counsel agreed with the department's recommendation to deny Brandy services, informing the juvenile court that the two oldest children consistently stated they did not want to return to Brandy's custody and cited her history of failed services from 2007 to 2009.

The juvenile court ordered the children removed from Brandy's custody, denied reunification services for Brandy, John and David H. as recommended and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Brandy contends her attorney, Sam Kyllo, was ineffective. She asks this court to vacate the section 366.26 hearing and order the juvenile court to return the children to her custody and terminate dependency jurisdiction. We find no merit to her claim and will deny her relief for the reasons we now explain.

In order to prevail on a claim that Mr. Kyllo was ineffective, Brandy must show that his performance was deficient and, absent his deficient performance, there is a reasonable probability she would have received a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

Brandy contends Mr. Kyllo was ineffective in the following respects: he permitted Brandy to incriminate herself, he failed to argue that she feared John, he withheld evidence, specifically a letter Brandy wrote to Judge Cardoza, which she attached to her petition, he concealed the existence of a favorable material witness, Cynthia M. Green, and he did not allow Brandy's mother to address the court.

As to whether Brandy incriminated herself, we look to what occurred at the jurisdictional hearing, which is when the juvenile court determines the truth of the allegations in the petition. (§ 355.) According to the appellate record, Brandy appeared at the jurisdictional hearing with Ms. Pinto, not Mr. Kyllo. At that hearing, Brandy submitted on the social worker's report. In doing so, she did not admit the allegations or incriminate herself, as she claims. Rather, she agreed to let the juvenile court decide whether the allegations were true based only on the information in the social worker's report. (In re Richard K. (1994) 25 Cal.App.4th 580, 589-590.) The appellate record does not contain a copy of the reporter's transcript of the jurisdictional hearing. Consequently, we have no record of what the juvenile court said to Brandy and how she responded. Nevertheless, the record does contain the JV-190 reflecting that Brandy voluntarily waived her right to challenge the allegations in the petition. Having done so, she cannot now claim that her attorney (at that time Ms. Pinto) misled her into incriminating herself.

As to Mr. Kyllo, the appellate record reflects that he represented Brandy only at the dispositional hearing at which the juvenile court was to decide whether to remove the children from Brandy's custody and deny her reunification services. Brandy claims, in essence, that Mr. Kyllo failed to put forth a proper defense; specifically, that he did not argue she was afraid of John, offer Ms. Green's testimony, her mother's statement or her letter.

Some of the evidence Brandy claims Mr. Kyllo did not present was, in fact, before the juvenile court. Notably, the fact that Brandy was afraid of John was introduced in the department's reports through Brandy's statements to the police and social workers. Also, according to the reporter's transcript of the dispositional hearing, Brandy submitted a letter to the juvenile court. Since the letter is not part of the clerk's transcript, we do not know its content. Nevertheless, Brandy cannot say Mr. Kyllo prevented her from submitting a letter on her own behalf. If, however, she claims Mr. Kyllo dictated the content of the letter to her detriment, she has failed to show what she could have said that would have made a difference to the juvenile court in rendering its ruling.

The juvenile court denied Brandy reunification services pursuant to section 361.5, subdivision (b)(5) and (6) because John severely injured David and Brandy failed to protect him. The appellate record contains substantial evidence to support such findings and Brandy fails to show how any letter from her, testimony by Ms. Green or statement by her mother would have caused the juvenile court to decide differently. Therefore, the appellate record does not support her claim that counsel was ineffective and we find no error.

Section 361.5, subdivision (b)(5) and (6) provide in relevant part:

"Reunification services need not be provided to a parent ... described in this subdivision when the court finds, by clear and convincing evidence, .... (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent .... (6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ... the infliction of severe physical harm to the child, . by a parent . , as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent .... [¶] ... [¶] A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, ... omission of the parent ...."

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.


Summaries of

Brandy S. v. Superior Court of Fresno Cnty.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 24, 2012
Super. Ct. No. 07CEJ300240-3 (Cal. Ct. App. Jan. 24, 2012)
Case details for

Brandy S. v. Superior Court of Fresno Cnty.

Case Details

Full title:BRANDY S., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 24, 2012

Citations

Super. Ct. No. 07CEJ300240-3 (Cal. Ct. App. Jan. 24, 2012)