Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. D. Zeke Zeidler, Judge. Los Angeles County Super. Ct. No. CK73363.
M.H. in propria persona for Petitioner.
James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Real Party in Interest.
No appearance for minor.
No appearance for Respondent.
ARMSTRONG, J.
M.H. (Mother) has petitioned this court for extraordinary relief pursuant to California Rules of Court, rule 8.452, seeking relief from an order terminating family reunification services in the dependency proceedings concerning her son D.H. (Welf. & Inst. Code, § 361.5, subd. (b)(6).) We deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The detention and the petition
D.H. was born in August 1998. On June 16, 2008, when he was 9 years old, his grandmother (who had only recently moved to California) saw that he had a black eye, swollen lip, and other bruises and scratches, and called the Department of Children and Family Services (DCFS).
The section 300 petition was filed on June 19, 2008, under subdivisions (a), (b), and (j). It included factual allegations about past abuse and about the June 16 incident: Mother tied D.H. up with a towel and struck his face with her fists, causing bleeding, swelling, and bruising to his eye and mouth. She also struck him with a can of air freshener, causing bruising, scratches and abrasions to his neck, arms and back, struck him with a can of insecticide, and sprayed insecticide in his face. She did all this because D.H. drank a can of her tea. The petition also alleged that Mother had threatened to kill D.H. if he reported the abuse.
The allegations were based on D.H.'s description of this abuse, which was consistent throughout the dependency, and the bruises and marks which social workers and police observed and photographed. D.H. told the social worker that Mother had said "I'm your mother and I have full authority to kill you."
After consultations with his maternal relatives, D.H. was placed with a maternal aunt, N.P.
At the detention hearing, the court ordered Evidence Code section 730 evaluations for Mother and for D.H., and appointed psychologist Ronald Fairbanks, Ph.D., to conduct the evaluation. There was no order for visits, with the court finding that visits with Mother would be detrimental to D.H.
The petition was amended on August 1, 2008. On August 25, 2008, Mother pled no contest to the petition as amended. The petition was sustained under subdivisions (a) and (i), on factual allegations concerning the June 16, 2008 abuse, and allegations that Mother had physically abused D.H. on numerous prior occasions. The order terminating reunification services was made a little over a year later, in September 2009.
Dr. Fairbanks's evaluation
Dr. Fairbanks reported on July 31, writing that while the allegations of physical abuse seemed to be documented, Mother's psychological assessment was not consistent with severe abuse. Dr. Fairbanks reported that "mother is not likely capable of severe abuse or having a significant emotional factor that would have caused or pushed her in that direction," though he noted the remote possibility that Mother was a multiple personality, so that he had assessed a different personality. Dr. Fairbanks did not recommend strongly that D.H. be returned to Mother. Rather, he stated that if the court found the allegations to be true, D.H. needed to be protected from her.
Dr. Fairbanks also examined D.H., who recounted the abuse he had suffered at his mother's hands and said that he wanted the judge to continue to refuse to let her see him. When asked if he missed his mother, D.H. said "no."
Dr. Fairbanks observed Mother and D.H. together. Mother kept asking if he missed her, and D.H. refused to answer. After the meeting, D.H. told Dr. Fairbanks that he did not want to live with his mother.
Compliance with reunification services
The court ordered individual counseling with a licensed counselor for both Mother and D.H., parenting classes, and weekly visits in a therapeutic setting once Mother and D.H. were in counseling as ordered.
D.H. was initially referred to counseling at an agency called Counseling for Kids, but his caregiver objected because the counseling would take place in her home. He was referred to another agency, which had a waiting list, and started counseling on October 2, with Cari Teran. D.H. remained in therapy with Teran for the rest of the dependency, with individual therapy and conjoint therapy with his maternal grandmother or his aunt/caregiver.
On October 3, 2008, DCFS also reported that the social worker had made many futile attempts to contact Mother, and had finally met with her on September 24. Mother had not begun counseling. The social worker gave her referrals for parenting classes and individual therapy.
Later in October, Mother informed DCFS that she was in counseling at Didi Hirsch Community Mental Health. This proved to be counseling to address employment issues, and when the social worker and the agency tried to arrange more suitable counseling, Mother refused the services.
For the rest of the dependency, Mother then enrolled in, and for a time participated in, counseling at several agencies:
-- In November, Mother informed DCFS that she had enrolled in counseling at Pacific Asian Counseling Services. This proved to be counseling with an intern, rather than a licensed therapist. That agency later reported that Mother had had weekly counseling from October 27 to November 24.
-- Then, on November 25, 2008, Mother began every-other-week therapy at the Contemporary Parenting Institute. On February 9, 2009, DCFS reported that Mother's therapist at the Institute, Terri Bartlett, reported that Mother had begun to acknowledge the abuse she had inflicted on D.H. and was at the beginning stages of anger management. Mother called the social worker to say that she was misquoted, and that she had inflicted no abuse and had no anger management issues. Mother also complained that Bartlett had violated her confidentiality, and asked for new referrals.
-- In February of 2009, Mother had a two-hour session with a different therapist, who wrote a somewhat positive report, based on Mother's statement that D.H. had been removed after a spanking for excessive bad behavior, and her statement that he had been in a fight with other children on that date, resulting in his bruises. After receiving case documents and photographs of D.H.'s bruises, this doctor wrote another report, pointing out that his earlier report had been based on Mother's account.
-- By March 2009, Mother had stopped going to therapy at the Contemporary Parenting Institute and had had one session at Community Family Counseling Programs, with Louis Hernandez. In August, she complained that Hernandez and her social worker, Ms. Jacobs, were friends, and had violated her confidentiality. In September 2009, Hernandez reported that Mother had had only 15 sessions since she had enrolled, and that the major obstacle to her treatment was her steadfast unwillingness to take responsibility for D.H.'s removal from her home.
-- In July 2009, DCFS spoke to Hernandez and learned that Mother was no longer consistently attending sessions and had not made progress toward her treatment goals.
Mother did complete her parenting class, in March 2009.
Visits
Throughout the dependency, D.H. consistently told social workers, his lawyer, and his therapist that he did not want to see Mother.
Due to Mother's delay in starting therapy, she and D.H. did not visit until December 12. The visit did not go well. Prior to the visit, D.H. told the monitor, a therapist, that he did not want Mother to touch him. She agreed, although she said that he had been told to say that by others.
At the visit, D.H. was acutely uncomfortable – "mild to medium dissociation," in the monitor's words. He rarely made eye contact with Mother. He did not want to sit next to her, wanted the door kept open, and on Mother's inquiry, said that he did not feel safe with her. He seemed depressed in her presence and asked that the visit end early. Mother then told him that he was "playing games," had power over her, and would be sorry.
During the visit, Mother handed D.H. a letter, asking him to read it later. A copy of the letter was attached to a December 18, 2008 report. In addition to such things as admonitions to "brush your teeth," and "say your prayers," the letter described Mother as D.H.'s best friend, says that D.H's grandmother stole him and that his other relative did not love him, and promised various presents, including a flat screen television and a Wii.
In November, D.H. filed a petition under section 388, asking that the visits order be changed. The petition attached a letter from his therapist to the effect that the visits were detrimental to him. The petition was ultimately withdrawn, but in the interim, on December 18, the court ordered visits suspended.
On May 1, 2009, the court ordered Mother and D.H. to have weekly 20 minute visits with both therapists present. When the social worker discussed the order with D.H., he said that he did not wish to see his mother but understood that he had to because of the court order. At the hearing, he had drawn a picture of himself and his mother. She had a weapon in her hand and the word "DIE" over her head in a cartoon bubble. Another cartoon bubble, linked to the drawing of D.H., said "help."
At any rate, the visits never took place. In April, a domestic violence restraining order had been issued against Mother, ordering her to stay 100 feet from D.H. This was apparently on the application of the Los Angeles City Attorney, which about that time filed seven counts of child abuse against Mother, based on the June 16, 2008 incident.
D.H.'s placement
When D.H. was placed with his aunt N., his maternal relatives also recommended another aunt, C., who lived in Georgia, as a permanent placement for D.H. D.H. had some difficulty adjusting to life with his aunt N., and after a time told DCFS that he wanted to live with relatives in Georgia.
On December 5, 2008, DCFS filed an ex parte application for an order allowing D.H. to travel to Georgia to visit C. and other relatives, a visit D.H. very much wanted and which Mother opposed on the ground that the visit would be "parental alienation." The court granted the application.
DCFS soon recommended an Interstate Compact for the Placement of Children (ICPC) (Fam. Code, § 7901) to make placement in Georgia possible, and on December 18, the court ordered an ICPC for the home of C., who had expressed a desire to adopt D.H. D.H. also spent his spring break with C., again over Mother's objections.
In March 2009, D.H.'s therapist described the problems he was struggling with, which included significant depression and anxiety, recommended that he not see Mother, and recommended that he spend as much time as possible with his extended family in Georgia, noting that he hoped to eventually live with his aunt C.
On April 30, 2009, D.H. ran away from his aunt's home. He had accidently hit one of her children in the nose and when she went to discuss it with him, he ran. He was only stopped because of a police barricade which had been placed on the street due to another incident. In this period, he was also suspended from school several times. His teacher reported that while he had made vast improvements in his behavior and was capable of excellent grades, he was disorganized, noncompliant with adult directives, and could benefit from a tutor.
A Team Decision Meeting was held on May 4, 2009 to discuss placement options for D.H. Social workers, D.H.'s therapist, and his maternal aunt and grandmother were present at the meeting. His maternal uncle and aunt were present by telephone from Georgia. It was decided that his maternal aunt in California was no longer a suitable placement and that the maternal grandmother would also be unsuitable until she was able to rent a suitable apartment. She was unable to do so, and on June 24, 2009, DCFS filed an interim report in which it stated that D.H. had been detained at a shelter care home.
In June, the court made another order allowing D.H. to visit his aunt C., this time from June 25 to July 17. C. had already located a therapist for D.H. Later, on D.H.'s motion, the visit was extended to July 21, then until September 15, when the section 366.26, subdivision (f) hearing was set to be heard.
On September 4, the ICPC was approved.
Mother's statements to DCFS, conduct during the dependency
Concerning the June 16 abuse, Mother initially told the social worker that she "treated [D.H.] like a man" and "gave it to him," because he drank her iced tea, and also admitted that she had "slammed D.H. to the ground" and hit him in the face with a can of potpourri. She said that she did not want D.H. back until he received psychological help. However, by DCFS's July 14, 2008 report, Mother was denying all abuse. She told DCFS that she had disciplined D.H. by spanking him, that he had hit her back, and that while she had hit him with the can of insecticide spray, she had only hit his arm, or had "bopped him on his head maybe once." She said that she had no mental health issues, but that D.H. needed extensive mental health treatment, and that she would like outside interference to stop.
D.H.'s aunt N. informed DCFS that after the December hearing which resulted in the order allowing the Georgia visit, Mother attempted to hit D.H. and his grandmother with her car, in the courthouse parking structure. Mother denied the allegation.
Based on that incident, DCFS began to have concerns about Mother's mental health. This concern was also based on Mother's January 22, 2009 phone call to a DCFS supervisor accusing social worker Jacobs of chasing her and taking pictures of her. Mother's speech was rapid and she did not provide any evidence of the charges she was making. Mother stated that approximately six weeks earlier, about 7:30 p.m., she had noticed Jacobs behind her at a stop light. Jacobs pulled to the side of her, stared at her, and took pictures of her. Mother said she wanted to "talk to the public." Mother also alleged that Jacobs got into her apartment building and that Jacobs "was sneaking around, coming to [her] building." Jacobs denied the allegations.
Mother several times sent DCFS letters criticizing her mother and her sisters (including D.H.'s caregiver) and accusing them of alcohol abuse, kidnapping, and neglect of their children. In June, such a letter included an allegation that a cousin in Georgia had touched D.H. inappropriately. D.H., the cousin, and other family members denied the allegations and D.H.'s therapist stated that D.H. never made such a disclosure.
At the August 3, 2009 hearing, Mother told the court that the restraining order had been filed in retaliation for her complaints about the social workers. At the end of August, at a Team Decision Meeting called to address concerns Mother had raised about D.H.'s placement and the dependency in general, Mother complained that a DCFS supervisor had called the police in retaliation for her complaint about Jacobs, that Hernandez (her therapist) and Jacobs were friends and had violated her confidentiality, and that D.H.'s maternal family was using him for financial gain from his modeling and acting career.
Mother's counsel
At the June 19, 2008, detention hearing, David Michael Miller was appointed to represent Mother. The case was moved to another courtroom after two affidavits of prejudice (Code Civ. Proc., § 170.6) were filed, one by Mother and one by D.H. In the new courtroom, Miller was relieved and L. Steve Lory was appointed in his stead. Thereafter, Mother changed lawyers, or attempted to do so, numerous times:
-- At an August 1, 2008 hearing, Mother asked to substitute David Miller back in as her counsel. She also asked for a continuance, because Miller was out of town. The court denied both requests.
-- On August 21, 2008, Douglas Miller filed a substitution of attorney, substituting in for Lory. At the hearing on that date, the court approved the substitution.
-- On December 4, 2008, Douglas Miller filed a motion to be relieved as counsel on the ground that Mother had failed to stay in contact with him in order to prepare her case. The motion was denied.
-- On December 18, 2008, Douglas Miller again asked to be relieved. The court granted the motion and appointed The Law Offices of Emma Castro to represent Mother. Mother and counsel later returned and requested a Marsden hearing. After the hearing, the court denied the motion but appointed Lory to represent Mother.
People v. Marsden (1970) 2 Cal.3d 118.
-- A hearing was held on February 18, 2009, to address the complaint Mother filed against Lory. After a Marsden hearing, the court relieved Lory as Mother's attorney and appointed Donna Bernstein.
-- On May 4, 2009, the court held another Marsden hearing, this one concerning Bernstein. Mother's request for a new lawyer was denied.
-- On August 3, 2009, Ephraim Obi filed a substitution of attorney, substituting in for Bernstein. At the hearing that day, the court accepted the substitution.
-- On September 15, 2009, Obi filed an ex parte motion to be relieved as counsel. He cited a total breakdown in communication with Mother. At the hearing, Mother stated that she wanted Obi to continue to represent her and the court denied the motion.
The section 366.26, subdivision (f) hearing
The court admitted into evidence the DCFS reports, and attachments, other pleadings in the case, and various documents evidencing attendance at programs, proffered by Mother.
Mother testified that she had complied with the case plan. At her program, she had learned boundaries and guidelines to use with children. She also attended anger management classes and counseling at the Pacific Asian Counseling Services, where she dealt with anger issues and learned that displaced anger is not good, and "learned not to be so passive and to be more assertive." At the the Parenting Institute, she learned about positive thinking, how to meditate and not to give her power away to other people, and not to be passive. She had dealt with family issues, learned how to communicate with a child and to provide positive reinforcement and appropriate discipline, and learned that corporal punishment should not be administered to a child. She had contacted at least 63 programs, and actually took other parenting programs, some of which the social worker would not approve, though the social worker's reasons were not always clear. At one point, she had to stop counseling because she could not afford it.
She testified to her belief that she "couldn't do anything right," that "the judge's mind is made up," and that "the rules have gone down the chain of command to not let [her] reunify with her child."
On cross-examination, Mother testified that she was going to therapy because of an isolated event which happened last June "where [she] spanked [her] child because his behavior had become so out of hand." She testified that she spanked D.H. with a belt on his backside.
The court stated that it had read and considered the evidence and listened to and considered the testimony. The court pointed out that Mother was still in denial of the sustained allegations, that Dr. Fairbanks's evaluation was inconsistent with all the other evidence, and that, "The mother has not had one single licensed therapist say that she has resolved the issues that brought the child to the system; say she has resolved the risk factors." The court found that reasonable services had been provided, and that although Mother was in partial compliance with her case plan, there was no likelihood that D.H. would be returned to her within the 18 month date, terminated family reunification services, and ordered D.H. placed with his aunt C.
DISCUSSION
First, we note that with her petition, Mother submitted several letters and other documents which were not before the juvenile court. Real Party in Interest has moved to strike these documents. The motion is granted. Factual matters contained in a brief which are not part of the record should be stricken. (Cal. Rules of Court, rule 8.452(b).)
Mother's contentions, as set out in the writ petition and points and authorities, are essentially twofold. First, she argues that she had made progress on her case plan and that the domestic violence restraining order should not have stopped reunification, and that required reunification services were not provided. Next, she argues that she had inadequate counsel who never informed her of deadlines, "bawled out" her witnesses, failed to put forth an adequate defense, and failed to inform her of her right to receive DCFS reports 10 days in advance of a hearing and that further records of the Marsden hearings are needed to advance her ineffective assistance arguments.
1. Reunification services
We review the juvenile court's finding that reunification services were adequate for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) The same standard of review applies to the juvenile court's finding that the return of D.H. would create a substantial risk of detriment. (Id. at p. 763.) "'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.'" (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
We see substantial evidence for the court's finding. Mother's delay in starting counseling, her frequent changes of therapists, and her consistent denial that she had abused D.H. meant that she had not made substantial progress in resolving the issues which led to his removal. (§ 366.21, subd. (g)(1).)
DCFS provided Mother with appropriate referrals and contacted each of her therapists to verify compliance. Mother did, as she argues, complete a parenting class, but although she saw several therapists, no reports indicated that she had made real progress. It was well within the province of the juvenile court to find that given her denial of abuse, parenting classes were not enough.
The court also made visits orders. Mother does not argue that the orders were inadequate or incorrect, but argues that visits were delayed because D.H.'s caregiver, who was "openly at war" with her, "stalled" on getting him therapy, and that the restraining order should not have prevented reunification. She argues that she was in substantial compliance with her case plan, but was not able to prove that she had learned from her classes and counseling, and that things had changed, because she did not have visits.
The caregiver's reluctance to have counseling sessions in her home caused a slight delay in counseling for D.H., but not a significant one. He began therapy in early October 2008. Mother did not have therapy with a licensed therapist until late November. Then, as the court had ordered, visits began.
However, during what was supposed to be the first of many visits, Mother acted inappropriately toward D.H., who feared her, something she seemed unable to understand. As she left, she handed him a letter in which was replete with unfounded accusations against her family members, including D.H.'s grandmother of whom he was very fond as well as other members of the family who were doing all they could to find a suitable home for D.H.
It is true that visits were later prevented by the restraining order, but on this record, Mother did nothing to challenge that order in the court which issued it. Thus, her complaint about the criminal court restraining order is unavailing. "[T]he Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence 'has precedence in enforcement over any civil court order against the defendant....' (Pen. Code, § 136.2, subd. (e)(2).)" (In re B.S., Jr. (2009) 172 Cal.App.4th 183, 191.) The domestic violence restraining order was entitled to priority, and Mother's remedy was to challenge that order in the criminal court.
2. Ineffective assistance of counsel, Marsden matters
Mother claims that each of her five lawyers was ineffective. A parent making such a claim must show "that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law," and that the action was prejudicial, that is, "that it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.)
Here, there is absolutely no evidence that any of Mother's lawyers' actions in defending her fell below the standard of care. To the contrary, it is clear that Mother would not communicate with her many lawyers, and frequently failed to help them present her case. Nor has Mother demonstrated that she would have received a different result if her lawyers had acted differently.
Mother contends that not one of her lawyers advised her of her section 366.21 right to receive a copy of DCFS's report 10 days before the hearing, and that the reports were in fact not provided to her timely, that Lory fell below the standard of care at the adjudication hearing when he objected to hearsay in the DCFS report but did not identify the disputed hearsay evidence with reasonable specificity (§ 355, subd., (c)(1)(2)) and that she was lulled into complacency by the very fact that he filed objections. She argues that she received ineffective assistance when she pled no contest to the petition, and that her lawyers failed to call witnesses.
She does not explain what different result would have been reached if she had received the DCFS reports sooner, except to say that she would not have waived notice. That might have delayed the dependency, but we cannot see that delay would have helped Mother. Nor does Mother specify which lawyer failed to call which witness, or how this case would have been different if she had not pled no contest.
Lory objected in writing to the hearsay testimony of a long list of witnesses. We can see no ruling that the objection was inadequate because of lack of specificity. Further, Mother does not tell us whether any statement by any of those witnesses was material to the order terminating reunification services. Nor can we see how Mother could have been "lulled" into forgoing any right or action, by the fact that Lory filed objections. We thus cannot find ineffective assistance of counsel.
Finally, Mother complains that she does not have transcripts of the Marsden hearings. She does not show that she ever requested them, nor do we see reason to believe that the transcripts would change the outcome on appeal. Indeed, we have transcripts of two of the three Marsden hearings, the December 18, 2008 and February 18, 2009 hearings, and see nothing which would change the result here.
DISPOSITION
The petition for extraordinary relief is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: TURNER, P. J., MOSK, J.