Opinion
F085712
10-02-2023
In re R.O., a Person Coming Under the Juvenile Court Law. v. A.O., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Wentworth Law Firm and Shannon Lyn Wentworth for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 21CEJ300409-1 Kimberly J. Nystrom-Geist, Judge.
Wentworth Law Firm and Shannon Lyn Wentworth for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
In this juvenile dependency case, the juvenile court ordered and adjudged minor, a nine-year-old girl, a dependent of the court and removed her from her mother's home. Mother challenges this dispositional removal order, arguing insufficient evidence supports the court's finding that the county Department of Social Services made reasonable efforts to prevent or eliminate the need for minor's removal from her home. Mother also contends her counsel provided ineffective assistance. We reject mother's claims and affirm.
BACKGROUND
On November 10, 2021, a police officer and a social worker responded to mother and minor's shared residence after the Department received a referral alleging mother's general neglect of minor. The Department received a video that day showing "an extremely messy home with no emergency exit." There appeared to be three overfilled litter boxes with feces.
The social worker noted a strong stench of animal feces emitting from the open door behind a locked security screen door. The social worker looked inside the home and saw it "was cluttered and in deplorable disarray." The "[l]iving conditions were unhealthy and unsanitary."
The officer and social worker left the home, but later the officer and two other workers returned and found mother and minor in a car in front of the home. Mother was uncooperative with the officer. She said no one would be allowed inside her house without a warrant and she would not answer any of the officer's questions. She said she wanted to speak to her attorney.
Mother admitted to the two social workers that she had "mental health issues." She said she had been diagnosed with post-traumatic stress disorder and attention-deficit/hyperactivity-disorder and has suicidal ideations and intrusive thoughts. Minor had body odor and needed a shower.
The officer told mother he was placing a Welfare and Institutions Code section 300 hold on minor. Mother became very upset and told minor not to get out of the car. It took the officer and his partner over 30 minutes to convince minor to get out of the car. Mother kept telling minor she did not have to do what the officer was asking and told her several times not to talk to anyone. Minor was placed in the care of possible mentors who mother knew from church.
All statutory references are to the Welfare and Institutions Code.
The social worker who initially responded to mother's house returned to mother's home on November 12, 2021. The social worker explained that minor's living conditions in mother's home were neglectful and unhealthy, and that mother's mental health issues were serious and placed minor at substantial risk of suffering further neglect or abuse. Mother acknowledged the social worker's concern but denied she could not care for her daughter; however, mother acknowledged she has a hoarding problem. Mother asked what she needed to do to get minor back into her care. In response, the social worker asked if mother would allow him into her home at that time to observe the living conditions. Mother said she would not allow him in at that time because she did not believe it would benefit her to have him inside and she said she needed time to clean. The social worker explained cooperation was imperative if she wished to get minor back into her custody. Mother said she would allow entrance but not at that time. Mother said several times she knew the Department was "building a case against [her]."
On November 15, 2021, the Department held a Team Decision-Making meeting. Mother and father were both present, and mother had several people present as part of her support system. Mother's support persons discussed a plan for relocating mother, completing weekly check-ins, and mother allowing the Department in the home. Father said he would not agree with any plan for minor to remain in mother's care because of a history of medical neglect and the persistently bad home conditions.
The Department considered voluntary family maintenance services as an alternative to removing minor from mother's home but was concerned about mother's lack of cooperation. The Department determined that an immediate safety plan could not be made, and that court intervention was therefore necessary. The Department filed a section 300 petition that same day, alleging minor came within the jurisdiction of the juvenile court under section 300, subdivision (b)(1). The petition alleged mother has mental illness-namely, "PTSD, major depression, and ADHD"-which makes it harder for her to provide ongoing care, support, protection, and supervision for minor.
At the detention hearing on November 16, 2021, the juvenile court ordered the minor remain detained and ordered the Department to offer mother services. The Department was ordered to offer her parenting classes and a mental health assessment and recommended treatment. The court also ordered supervised visitation for both parents. The court calendared a jurisdiction and disposition hearing for January 25, 2022.
Subsequent references to dates are to dates in 2022 unless otherwise stated.
The Department prepared an initial jurisdiction and disposition report ahead of the January 25 hearing. The Department recommended that minor be declared a dependent of the court and placed in foster care and that mother be ordered to participate in family reunification services. The Department reported that mother expressed willingness to participate in services but had not completed any offered services and had not made substantial progress in demonstrating that she was overcoming the issues that caused minor to be removed. The Department was concerned whether mother would benefit from services because she appeared to be minimizing the effect of her mental health issues. Nevertheless, the Department stated prognosis for successful reunification is good if the parents participated in services and engaged in their case plan.
The report also noted that mother was referred for a mental health assessment on November 16, 2021, and the referral was accepted by an outside agency. Mother attended the assessment on December 7, 2021, where she disclosed to the clinician that she was "already seeing a therapist." The clinician determined mother needed services but said she had to refuse the referral because mother was already being treated. The Department told mother she could work with her own therapist as long as the therapist would be willing to give progress reports. The report also stated mother had been referred to a parenting class and was on the waiting list for the next available class.
Also attached to the report was a case plan for both parents. The plan listed six "service objectives" and stated that the Department was to hold, on at least a quarterly basis, a "Child and Family team meeting." The plan also noted that mother was to receive a mental health assessment and recommended treatment and parenting classes. The plan said the Department was also to "continue to monitor the case plan and make referrals as appropriate." A Department social worker was to be available to consult with the family during regular business hours.
The jurisdiction and disposition hearing was continued six times and was finally heard over two days on December 1 and 2. Three addendum reports to the initial jurisdiction and disposition report were filed, dated April 21, June 30, and September 15.
The April 21 addendum report noted that Child and Family Team meetings took place on February 16 and April 13. By the time of filing of the April 21 addendum report, Mother had completed her offered parenting classes, which she stated were a "review" for her. She reported she was participating in mental health services with her own preferred provider. The social worker reached out to mother's clinician to request a progress note, and the report stated the social worker would provide information from the clinician to all parties when it was received. To that end, mother had signed a release of information for her clinician to provide the Department the requested information. The report also stated mother was residing in a residential treatment program at Rescue the Children, and mother's case manager at Rescue the Children reported mother had been progressing well in the program there. The Department still recommended then that mother be ordered to participate in family reunification services.
The June 30 addendum report noted that a Child and Family Team meeting took place May 15. The report stated that the Department never received any progress notes or updates from mother's mental health clinician. The social worker learned mother had started seeing a new clinician, Anna Hearn, at Rescue the Children in early May. On May 10 and June 10, the Department emailed Hearn but received no response. When the social worker learned she had the wrong email address she emailed the Rescue the Children case manager on June 27 and requested Hearn's contact information. The social worker, at the time of filing the addendum report, was waiting to hear back from Hearn. The Department had received nothing about mother's mental health services from Hearn. In the June 30 addendum report, the Department changed its recommendation regarding disposition. It recommended first that the court find that minor is a child described by section 300. It next recommended that minor be removed from mother's care and placed with father and that jurisdiction be terminated.
The September 15 addendum report maintained the same recommendation regarding disposition: placement with father and termination of jurisdiction. The report stated that at a Child and Family team meeting on July 11, the Department reminded mother and her Rescue the Children case manager that it still needed to have the discharge paperwork from mother's prior mental health clinician, Ann Otto, as well as a progress note from her current clinician, Hearn.
The addendum report stated that a social worker met with mother on July 13 and August 4 at Rescue the Children "to receive updates on her progress in services and to provide [mother] with any clarifications needed for her case." Mother told the social worker she wanted all email communication to include her Rescue the Children case manager. At the in-person meetings, mother's case manager and the director of Rescue the Children were always present. Mother also requested that the social worker send her questions ahead of the in-person meeting so she could prepare her answers. The social worker noted in the report that mother requested this from one of the other social workers, too. At the July 13 meeting, the social worker received an unsigned letter reportedly from Hearn. The letter had no identifying information and did not say what organization Hearn was affiliated with. The Rescue the Children case manager said she did not have the discharge paperwork from Otto but would provide it when she "locate[s]" it.
On July 20, the social worker emailed mother and her Rescue the Children case manager about the discharge paperwork from Otto, and on July 21 the manager responded that she would have it by next week. On July 28, the social worker emailed mother and the case manager again about the Otto paperwork and asked if they could get Hearn's signature on the letter she purportedly wrote. The social worker received no reply and emailed again on August 2. On August 3, the social worker met with mother, the case manager, and the director of Rescue the Children in person, and the case manager said she would get the discharge paperwork. Later on August 3, the case manager forwarded an email from Otto to the social worker and told the social worker that that was what was received. The social worker replied that what was sent was not discharge paperwork.
On August 10, the case manager provided the social worker with a monthly progress note from Hearn dated August 4. The note said Hearn was meeting weekly with mother for individual therapy sessions and that they had had 13 sessions so far. The note stated mother's "therapy goals have not changed, and she is working in therapy." The note did not identify the goals or say how mother was progressing. The note said that Hearn would speak with mother's social worker but was not comfortable giving confidential client information to county agents, even with a release of information, because it would be detrimental to the patient-clinician bond.
Hearn's August 4 letter also referenced an "initial letter," but the social worker had not received that letter. The social worker thought that Hearn may have been referencing the unsigned letter. On August 22, the social worker emailed mother and her case manager to say that because that because Hearn never signed the initial letter, the Department could not verify that is what Hearn was referring to. Neither mother nor the case manager replied. On August 23, the social worker emailed them again about the letter. As of the time of filing the September 15 addendum report, the Department had not received a signed "initial letter" and had not been able to directly contact Hearn despite multiple attempts.
The September 15 addendum report stated that the Department had repeatedly described to mother the communication and documentation needed regarding her mental health treatment, but that it had been hard to receive the required information. The report stated that "there appears to be a disconnect between" Hearn and the Department. The report also said mother had not provided insight on her therapy sessions and appeared preoccupied with wanting to give the Department the "right" answers rather than explaining how she feels her treatment is benefitting her. Communicating directly with mother had been difficult because there were barriers to reaching her. The Department said that, at that time, it could not "make a full assessment on the mother's progress towards alleviating her diagnosis of Obsessive Compulsive Disorder and hoarding and its effects on [minor], as the documentation does not outline the mother's treatment goals." For those reasons, the Department recommended that minor be placed permanently in father's care and that jurisdiction be terminated.
Jurisdiction and disposition hearing
At the combined jurisdiction and disposition hearing, the court heard testimony from many witnesses, including mother, Otto, Hearn, mother's psychiatrist, and a social worker who worked with mother. Mother's psychiatrist testified that she diagnosed mother with bipolar disorder, attention-deficit/hyperactivity disorder, generalized anxiety disorder, and obsessive-compulsive disorder.
The social worker testified that she does not believe it would be safe for minor to return to mother's care because mother had not provided the Department with "any insights or documentation supporting her ability to remedy the issues that prompted removal" of minor from her custody. The social worker elaborated: "[Mother] has not provided me any insight on how she has been able to connect the issues with her mental health and how that led to the neglect of her daughter." The social worker said she has told mother what she must do to have minor returned to her care. She told mother she needs to show she can safely parent minor and needs to show that she has gained insight from her mental health services. Mother also had to show she understands the safety concerns that caused minor to be removed and understands how her mental health issues affected minor's safety. The social worker testified she does not think mother understands why minor was removed. The social worker thinks that the living conditions that prompted removal would recur if minor were returned to mother's care.
Court's order
The court found true the b-1 count of the section 300 petition, and thus found minor was a person described by section 300. The court also ordered and adjudged minor to be a dependent child of the court. (§ 360, subd. (d).) The court next found by clear and convincing evidence that there would be a substantial danger to minor's physical and emotional well-being were she returned to mother's home. The court found that mother lacks "insight into the problem" and does not recognize "the circumstances that led to removal." The court further found that there were no reasonable means by which minor's physical health could be protected without removing minor from mother's physical custody. (§ 361, subd. (c)(1) &(d).) The court further found reasonable efforts were made to prevent or to eliminate the need for removal of minor from mother's home. (§ 361, subd. (e).) The court placed minor with father and granted him full legal and physical custody and terminated its jurisdiction over minor under section 361.2, subdivision (b)(2). Mother was granted supervised visits with minor.
The court stated that it placed minor with father and awarded him custody and terminated jurisdiction under section 361.2, subdivision (b)(2), and the minute order reflects the same. This was obviously a mistake. The court's orders track the language of subdivision (b)(1), which requires the court to terminate jurisdiction if it orders the previously non-custodial parent to become the minor's legal and physical custodian. Subdivision (b)(2) allows the court to order that the previously non-custodial parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. We are confident the court intended to enter an order under section 361.2, subdivision (b)(1).
DISCUSSION
I. Ineffective assistance of counsel
Mother contends her counsel was ineffective in several ways, primarily in failing to introduce favorable evidence at the combined jurisdiction and disposition hearing. We reject her claim.
"To succeed on a claim of ineffective assistance of counsel, the appellant must show: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. [Citations.] Unless the record affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission, we must affirm the judgment. [Citations.] Moreover, '[a] court may reject a claim of ineffective counsel if the [appellant] fails to show the result would have been more favorable but for trial counsel's failings.'" (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540-1541.) "In demonstrating prejudice, the appellant 'must carry his burden of proving prejudice as a "demonstrable reality," not simply speculation as to the effect of the errors or omissions of counsel.'" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Where the factual basis for a claim of ineffective assistance of counsel rests on evidence not contained in the appellate record, "a habeas proceeding is the proper vehicle to raise the issue." (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136 (Michael D.).) "[H]abeas petitions are recognized as proper vehicles for raising claims of ineffective assistance of counsel in dependency proceedings." (In re Paul W. (2007) 151 Cal.App.4th 37, 53.)
From what we can glean from her briefing, mother argues her counsel's deficient performance affected the court's dispositional findings. We will address each of mother's claims of ineffective assistance separately.
UCLA Health program
At the combined jurisdiction and disposition hearing, mother testified that she completed an intensive outpatient program with UCLA Health for obsessive-compulsive personality disorder. Mother claims her counsel was ineffective for failing to introduce documentary evidence showing she completed the program and for failing to call her care provider from the UCLA program as a witness.
Mother attaches to her opening brief a photocopy of a purported "after visit summary" from a clinician at UCLA Health. Her briefing implies that her counsel should have introduced this document into evidence. This is impermissible because the attachments are not part of the appellate record. Attachments to an appellate brief may include "exhibits or other materials in the appellate record" or copies of statutory materials not readily accessible. (Cal. Rules of Court, rule 8.204(d), emphasis added.) We therefore cannot consider anything stated in this document.
Mother cites no evidence in the record showing that calling her UCLA Health clinician or introducing any documentary evidence relating to her purported UCLA Health treatment would have helped her. Indeed, she does not even say what the UCLA clinician would testify about. Rather, she simply asserts the failure to present such evidence "is prejudicial ineffective assistance of counsel." Mother has not even attempted to show prejudice, and therefore we cannot find her counsel was ineffective in this regard.
Psychological evaluation
Mother also contends her counsel was ineffective for failing to have her undergo a psychological evaluation ahead of the jurisdiction and disposition hearing. She contends, without citing evidence, that a psychological evaluation would have shown she presented no risk of harm to minor. This is utterly speculative and does not prove she was prejudiced by not having a psychological evaluation performed. She cannot establish ineffective assistance based on pure speculation.
Objection to case plan
Mother also contends, in a single conclusory sentence, that her counsel was ineffective for not objecting to her case plan created by the Department. She does not explain what was wrong with her case plan. Her claim fails.
Parenting assessment and parenting classes
Mother next contends her counsel was ineffective for failing to introduce documentary proof that she completed a parenting assessment and several parenting classes besides the ones the Department enrolled her in. She attaches photocopies of the purported assessment and purported certificates of completion for the classes as exhibits to her opening brief. These documents are not part of the record, so attaching them is wholly improper. (Cal. Rules of Court, rule 8.204(d).) These unadmitted documents cannot support an ineffective assistance of counsel claim.
Section 388 petition
Finally, mother claims her counsel was ineffective for failing to file a section 388 petition to show a change in circumstances. She contends this failure deprived her of "the ability to show that sufficient evidence supports reunification." This is a puzzling claim because when should the section 388 petition have been filed? There was a combined jurisdiction and disposition hearing, after which the court made jurisdiction and disposition findings from which mother appeals. Mother has not explained why she did not have adequate opportunity to prove at the two-day jurisdiction and disposition hearing that minor should be returned to her home. We reject her claim.
Many of mother's claims are not cognizable on direct appeal and should be brought in a habeas proceeding. (See Michael D., supra, 209 Cal.App.3d at p. 136.)
II. Reasonable efforts to prevent removal
Mother also challenges the dispositional order removing minor from her custody. She contends insufficient evidence supports the court's finding that the Department made reasonable efforts to eliminate the need for removal. We disagree.
A. Applicable law
A juvenile court's dispositional order removing a child from parental custody is reviewed for substantial evidence, bearing in mind the heightened clear and convincing evidence standard. (In re L.O. (2021) 67 Cal.App.5th 227, 245.)" 'Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt.' [Citation.] Still, the appellant bears the burden of showing' "there is no evidence of a sufficiently substantial nature"' to support the dispositional removal order." (Ibid.) In conducting our review, "we view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile court's findings and orders. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment." (In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) "Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)
Before removing a minor from his or her parent's custody, the court must find by clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and [that] there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's ... physical custody." (§ 361, subd. (c)(1); In re T.W. (2013) 214 Cal.App.4th 1154, 1163; In re Javier G. (2006) 137 Cal.App.4th 453, 462.) When removing a child under section 361, "[t]he court shall make a determination as to whether reasonable efforts were made to prevent or eliminate the need for removal of the minor from his or her home[.]" (§ 361, subd. (e).)
B. Analysis
Substantial evidence supports the court's reasonable efforts finding. On November 12, 2021, just two days after minor was removed, a social worker contacted mother in person at her home and asked if he could come inside to observe the living conditions. That was an opportunity for mother to show the Department that her home was in safe condition and that minor could be returned, but Mother refused it. The social worker that day informed mother that her cooperation with the Department would help get minor back into her care.
On November 15, 2021, the Department held a Team Decision-Making meeting with the parents and several of mother's support persons. At the meeting, the participants discussed a plan for relocating mother, completing weekly check-ins, and mother allowing the Department in the home.
On November 16, 2021, the day of the detention hearing, the court ordered the Department to offer (1) parenting classes and (2) a mental health assessment and recommended treatment. That very same day, the Department registered mother to attend two parenting classes and set up a mental health assessment with an outside agency. Mother completed two parenting classes and underwent the mental health assessment the Department set up for her. The clinician who conducted the assessment determined that mother needed services, but mother said she wanted to keep getting treatment from the clinicians she had been using. The Department told her they had no issue with that, so long as she provided progress updates from her clinicians.
The Department also created a case plan for mother and held multiple Child and Family team meetings with mother present. The Department told mother what was required to have minor returned to her custody: show that she can safely parent minor and that has gained insight from her mental health services.
A Department social worker also visited mother multiple times in person at Rescue the Children while she lived there. The Department tried many times to obtain proper documentation evidencing mother's progress in her mental health treatment. The Department told mother multiple times that it needed the discharge paperwork from Otto, progress notes from Hearn, and Hearn's signature on an unverified letter. The Department never received the discharge paperwork nor a signature on the unverified letter, and the progress note it received from Hearn did not identify mother's treatment goals or how well she was progressing toward those goals.
The record also shows mother was often less than cooperative. She requested questions ahead of meetings and never wanted to speak with the Department's social workers alone. The Department noted in an addendum report that it had been hard to communicate directly with mother because there were barriers to reaching her.
The record shows the Department made reasonable efforts to obtain evidence from mother showing it would be safe to return minor to her home. It is unclear from mother's briefing specifically what more she thinks the Department should have done to help her regain custody.
Mother also contends under her reasonable efforts argument that the Department was late in preparing her case plan. She does not even assert, much less explain, how she was prejudiced by the alleged lateness. She also did not raise this issue below and therefore forfeited it. (Kevin R. v. Superior Court (2010) 191 Cal.App.4th 676, 686.)
III. Cumulative error
Mother argues that the cumulative effect of her counsel's ineffective assistance and the court's error requires reversal. Mother cites no authority for the application of the cumulative error doctrine in juvenile dependency cases, although it has been applied on review of criminal convictions. In any event, we have found no errors in the various claims she has posited. There is therefore no cumulative error. "The zero effect of errors, even if multiplied, remains zero." (People v. Calderon (2004) 124 Cal.App.4th 80, 93 citing People v. Loewen (1983) 35 Cal.3d 117, 129.)
DISPOSITION
The juvenile court's December 2, 2022, dispositional removal order is affirmed.
WE CONCUR: LEVY, Acting P. J., FRANSON, J.