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In re Faithe

Court of Appeals of California, Fourth District, Division Three.
Nov 3, 2003
No. G032750 (Cal. Ct. App. Nov. 3, 2003)

Opinion

G032750.

11-3-2003

In re FAITHE F. on Habeas Corpus.

Michael D. Randall, under appointment by the court of appeal, for Petitioner. Benjamin P. de Mayo, County Counsel, and Thomas F. Morse, Deputy County Counsel, for Real Party in Interest. Jacquelyn E. Gentry, under appointment by the court of appeal, for the Minor.


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Faithe F., mother of John F., seeks extraordinary relief from the orders of the juvenile court declaring her son a dependent child, removing him from her custody, and denying her reunification services. Although such orders are not appealable unless a writ petition is first filed (Welf. & Inst. Code, § 366.26, subd. (l)), her attorney filed a notice of appeal from the order rather than filing a notice of intent under California Rules of Court, rule 39.1B. The appeal was dismissed because it was taken from a nonappealable order. (In re John F. (Sept. 12, 2003, G032376).) In this petition for habeas corpus, Faithe contends she should be allowed to collaterally attack the juvenile court order because she was denied the effective assistance of counsel. We deny relief.

FACTS

Two-year-old John F. was taken into protective custody in January 2003 after an anonymous party reported seeing him being hit in a parking lot by his maternal grandparents. The investigating police went to the grandparents house where they found the mother, who said she lived there with her parents. She explained she worked five days a week and did not have time to take care of her son, so he stays with her girlfriend, Lomika. The officers reported the mother said "sometimes her parents pick up John at [Lomikas house] and take him for the day." The officers found the home to be "dirty, cluttered and unkempt. There were dog feces on the floor and several bags of trash in the kitchen area. Several items were stacked about four to five feet high around the living room and kitchen." The refrigerator was leaking significant amounts of water on the floor, and there was mold growing on the walls.

During the officers interview with the mother, the grandparents drove up with John in their car. The child was dirty, had dark bruising under both eyes, and a cut on his upper lip. Upon examination, the officer saw John had a "large" diaper rash. "A portion of the rash had what appeared to be raw skin and was oozing a slight clear fluid. The area of the rash appeared bright cherry red in color and had a foul odor as [the officer] first opened his diaper." The grandmother and the mother each told the officer that the other was responsible for taking the child to the doctor. The grandfather said the child stays with the maternal great-grandmother in Anaheim Hills; he and the grandmother "occasionally care for the child when [the great-grandmother] has other things to do." The grandmother concurred, saying that John never stays with Lomika, only with the great-grandmother.

When the mother was interviewed by the Orange County Social Services Agency (SSA), she explained that John alternates living with Lomika and the great-grandmother every two weeks. The mother noticed the black eyes about one week before detention, but she had no idea how the child had been injured. She thought maybe Lomika had done it. Lomika blamed the grandparents. The great-grandmother said she had been Johns primary caretaker for the last eight months, although he spent some time with Lomika. The great-grandmother noticed the bruising several days before detention, when John returned from Lomikas house, but she did not think Lomika would hurt the child.

SSA records revealed that the mother had been in foster care from the age of eleven to thirteen because her father sexually molested her. The mother reported that while she was in foster care she was involved in "ritualistic sexual abuse and used as a child prostitute . . . ." She was returned to her parents, but continued to suffer emotional and physical abuse from both of them. The mother met the father, Gary B., when she was 17 years old.[] Although he was 19 years older than she, they started living together and had a child, Benjamin. Benjamin has been the subject of two prior dependency cases.

The father died during these proceedings.

Benjamins first case began in September 1995. The parents had been receiving family maintenance services since May 1995, when Benjamin was two weeks old, but they gave the child to a family friend because they were unable to cope with his care. Finally, they asked SSA to take the child. At the time he was detained, there was no food in the house, which was filthy. Both parents had chronic long-term mental health problems and were unable to interact with the child. Benjamin was retuned home 18 months later on family maintenance, but during that time the great-grandmother was actually providing care for Benjamin. She reported at one point she noticed Benjamin "had sustained two black eyes, a bloody nose and had other marks on him." She did not report this to the assigned social worker or take the child for medical care.

Benjamin was redetained in 1997, about eight months after he was returned home. Two mental health care workers testified that neither parent was capable of benefiting from reunification services, and their parental rights to Benjamin were terminated in 1998.

SSA filed a dependency petition on Johns behalf, alleging that he came within Welfare and Institutions Code section 300, subdivisions (b) [neglect, failure to protect], (g) [abandonment], and (j) [sibling abuse].[] Before the jurisdictional and dispositional hearing, the mother underwent a psychological evaluation pursuant to court order (Evid. Code, § 730). The evaluator, Dr. Jane Mak, reported the mothers "current level of intellectual functioning falls within the low average range . . . . [H]er higher cognitive functions . . . are significantly compromised. . . . [¶] [I]t appears that [the mother] is highly dependent on others, easily influenced by individuals in her life and strongly affected by her external environment." Dr. Mak stated that while the mothers "internal environment of personality characteristics and cognitive capacity" were unchanged, her external environment had improved because she was living in her own apartment without the negative influences of her parents and husband. "Despite these changes, however, there remain serious concerns regarding her motivation, ability and capacity to adequately parent her child and provide him a safe and secure home." Dr. Mak opined the mother was not incapable of benefiting from reunification services, although she would require extensive and repeated exposure to parenting classes and focused individual psychotherapy. Dr. Mak recommended monitored visits.

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

The mothers trial counsel arranged a second psychological evaluation by Dr. Charles Drury. He described the mother as having borderline intelligence with passive-dependent personality features. He opined the mother could regain custody of John "[w]ith the proper stipulations of supervision and training by the Court . . . . Anger management and parenting classes, as well as psychotherapy are recommended to insure proper child supervision."

The jurisdictional and dispositional hearing was held in May 2003. At that point, the mother had a full-time job and was living with the great-grandmother. Her counsel argued she had "matured" and was "a responsible young lady." SSA argued no reunification services should be provided because "it would be futile. Nothing has changed with the mothers situation. Shes always worked, shes always had a place to live. That is not the problem with this mother . . . . Its her abilit[y] to take care of . . . a child. And . . . she lacked it back then, she lacks it now." SSA pointed out that Benjamin and John were detained under very similar circumstances. Both children were "left with inappropriate caretakers, the parents used inappropriate physical discipline on both children, the children were not taken care of, inadequate housing in that the houses were dirty and filthy and unkempt. . . . [¶] Mom received abundant reunification services but she failed to reunify, [and] unfortunately the exact same thing happened to John."

The juvenile court found the allegations of the petition true, removed custody from the mother, and denied reunification services under section 361.5, subdivision (b)(10) and (11). Visitation between John and the mother was ordered for once a month. The court advised the mother, "Mom, you have a right to appeal this courts decision, file a writ. You must file that notice of intent and request for record within 10 days of todays date. Please discuss this matter with your attorney to make sure you get all of that paperwork done in regards to filing that notice of writ." After realizing the time to file was seven days, not ten, the court repeated, "Mom, you must file your notice of intent and request for record within seven days of todays date. Make sure you discuss that with your attorney and get that done." The mothers counsel responded, "I will before she leaves today."

No notice of intent was filed, but a notice of appeal was filed five days later. Appointed appellate counsel realized the problem and filed this habeas petition seeking review of the juvenile court orders based on the ineffective assistance of counsel.

DISCUSSION

A petition for habeas corpus is the proper way to raise ineffective assistance of counsel in a dependency proceeding. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253.) The petitioner must show, first, that her counsels representation fell below an objective standard of reasonableness and, second, that it is reasonably probable she would have received a result more favorable to her but for counsels errors. (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) There is no question that a reasonable attorney practicing juvenile dependency law would have filed a notice of intent rather than a notice of appeal; thus, the mothers counsel clearly erred. But the mother cannot show there is a reasonable probability she would have been successful had her counsel filed the notice of intent and a subsequent writ petition.

The jurisdictional findings are supported by substantial evidence. The mother was chronically unable to care for John and left him with various caretakers without checking on his welfare. She allowed him to stay with his grandfather, who was a registered sex offender and molested the mother when she was a child. None of the various caretakers took responsibility for Johns physical well-being. According to several witnesses, the bruising under Johns eyes was significant and noticeable for more than a week. No one knew how the injuries occurred or took him for medical treatment. He was clearly a child at risk of suffering serious physical harm as a result of parental neglect. (§ 300, subd. (b).) Likewise, John was at risk of the same abuse suffered by his sibling, Benjamin, as demonstrated by the record. (§ 300, subd. (j).)

The juvenile court was well within its discretion when it denied reunification services to the mother. Section 361.5, subdivisions (b)(10) and (11) provide that reunification services need not be provided to the parent if the court previously terminated reunification services for a sibling because the parent failed to reunify or terminated parental rights to a sibling, and "this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . from that parent."

There was substantial evidence that the mothers ability to care for a child had not changed since Benjamins dependency case was closed. Both psychologists who interviewed her noted much work was still needed before John could be safely returned to her, if at all. The circumstances of Johns detention were remarkably similar to Benjamins; the mother was unable to care for either of them and was unable or unwilling to protect their safety while in the care of others. The denial of reunification services here "`responds to the often asked question how many children does a parent get to harm before we say, as a matter of law, enough is enough. [Citation.]" (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72.)

The mother also complains about the reduction of visitation from once a week to once a month, arguing this "will almost certainly guarantee the termination of her parental rights at the upcoming section 366.26 hearing." Visitation orders are subject to an abuse of discretion standard and will not be disturbed by a reviewing court absent evidence of a clear abuse. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; In re Megan B. (1991) 235 Cal.App.3d 942, 953.) The juvenile court here denied reunification services to the mother and had set a hearing to select a permanent plan for John. At this point in the proceedings, the childs interest in permanency and stability outweighs the parents interest in reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) It is reasonable to assume that the juvenile court viewed a reduction in visitation as helpful to John in making the transition to potential adoption. This was not an abuse of discretion.

DISPOSITION

The petition for habeas corpus is denied.

WE CONCUR: RYLAARSDAM, J. and FYBEL, J.


Summaries of

In re Faithe

Court of Appeals of California, Fourth District, Division Three.
Nov 3, 2003
No. G032750 (Cal. Ct. App. Nov. 3, 2003)
Case details for

In re Faithe

Case Details

Full title:In re FAITHE F. on Habeas Corpus.

Court:Court of Appeals of California, Fourth District, Division Three.

Date published: Nov 3, 2003

Citations

No. G032750 (Cal. Ct. App. Nov. 3, 2003)