Opinion
B166555.
10-28-2003
In re JENNY A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. DANA S., Defendant and Appellant.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Kim Nemoy, Deputy County Counsel, for Petitioner and Respondent.
Appellant Dana S. is the natural mother of Jenny A. and Lauren A., dependents of the juvenile court. Dana challenges the findings and rulings of the juvenile court at the six-month review (Welf. & Inst. Code,[] § 366.21, subd. (e)). We affirm.
All further statutory citations are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second time that this dependency proceeding has come before us on appeal. Because the two appeals overlap closely in time, we summarize the procedural history of both appeals.
Jenny was born to Dana and Walberto A. in 1995, and Lauren[] was born to Dana and Moises A. in 1997.[] On April 24, 2002, respondent Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 on behalf of these children.
Lauren is also identified as "Laurence" and "Loren" in the record. We use the first name found on his birth certificate.
Neither Walberto nor Moises are parties to this appeal.
According to the DCFS detention report, the family came to DCFSs attention when Dana was arrested for possession of stolen property and use of a stolen voucher to obtain a motel room. The children told DCFS that Dana and Moises sometimes hit each other, and they struck the children with a belt and their hands. DCFS also learned that Moises was an alleged unregistered sex offender. Moises informed DCFS that Dana sometimes used illegal drugs. Finally, Dana indicated that the children might have native American ancestry.
At the detention hearing on April 24, 2002, the juvenile court appointed Linda Ann Simmons to represent Dana, who appeared at the hearing. The juvenile court detained Lauren, and initially released Jenny into Walbertos custody. DCFS was directed to provide Dana and Moises with reunification services.
Dana and Moises subsequently entered in a mediation agreement to submit to the DCFS reports and to an amended section 300 petition alleging, inter alia, that the children were periodically exposed to violent confrontations between Dana and Moises, that Dana had a history of drug abuse, and that Moises, a registered sex offender, had a history of drug and alcohol abuse.
On July 11, 2002, Dana, represented by Simmons, was present at the combined jurisdictional and dispositional hearing. In open court, she affirmed the mediation agreement and her understanding of its terms. The section 300 petition was sustained as amended, pursuant to the agreement of the parties. Dana was ordered to participate in parenting classes, domestic violence counseling, and drug counseling with random drug testing. She was accorded reasonable monitored visitation.
On July 18, 2002, Dana requested a rehearing, contending that the mediation agreement was the product of coercion. This request was denied on August 12, 2002.
Dana also asked for a new court-appointed attorney. The juvenile court held a Marsden hearing[] on August 1, 2002, and rejected Danas request for new counsel. Dana subsequently requested a rehearing of this ruling, which was denied on August 19, 2002.
In People v. Marsden (1970) 2 Cal.3d 118, 123, our Supreme Court held that if a criminal defendant seeks to have new counsel appointed on the grounds of present counsels performance, the trial court must inquire into the bases of the defendants dissatisfaction and exercise discretion in deciding whether to grant the defendants request. In dependency proceedings, parents have been accorded similar rights to challenge their appointed counsel. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1658.)
In early November 2002, Dana renewed her request for a new court-appointed attorney. She also contended that she was never apprised of the section 300 petition or the detention hearing held on April 24, 2002, and that she had been denied her right to a trial.
On November 8, 2002, the juvenile court held a second Marsden hearing, concluded that Danas contentions were unsupported, and rejected her request for a new attorney. Dana initiated her first appeal (B164037) from the rulings at the November 8, 2002, hearing.
In connection with the six-month review, DCFS reported on January 2, 2003, that Dana had enrolled in a parenting education class, substance abuse counseling, domestic violence counseling, and individual counseling, but had failed to complete these programs. She had also participated in random drug testing, and had tested positive for drugs on three occasions in June 2002. Since June 2002, she had been listed as a "No show" on the appointed dates for testing. DCFS also stated that Dana was uncooperative, and had failed to return the DCFS social workers phone calls. According to DCFS, she visited the children irregularly.
At the six-month review on January 8, 2003, Dana disputed the DCFS report. The juvenile court continued the six-month review to February 5, 2003, and it directed DCFS to identify the dates the social worker had tried to phone Dana, and to confirm the reports that it had received from her drug testing facility.
On February 5, 2003, DCFS reported that it had contacted Dana about her parenting and counseling programs. When asked about the "No show" indications from her drug testing facility, she had replied that she had not signed a release permitting DCFS to obtain her test results. In addition, DCFS submitted evidence that Dana was a "No show" on several testing dates in December 2002 and January 2003.
DCFS had also contacted parenting and counseling programs in which Dana had enrolled. She had completed a parenting program in November 2002, but had not completed her substance abuse program. DCFS was unable to obtain a timely response from Danas domestic violence program.
Dana requested additional time to respond to the information in the DCFS reports, and the six-month review was again continued to February 19, 2003. It also ordered Dana to release her test results to DCFS.
On February 12, 2003, DCFS stated that it had contacted Danas drug testing facility. According to this facility, it had issued several "No show" test reports, notwithstanding Danas presence at the facility on the pertinent dates, because persons with surnames beginning with "S" had not been selected for tests on those dates. DCFS subsequently reported that Dana had failed to test on some dates between August and November 2002, even though the letter "S" had been called for testing. Dana had also been designated a "No show" twice in January 2003.
Dana did not appear at the six-month review on February 19, 2003. On her behalf, Simmons requested an additional continuance of the review, which was denied. The juvenile court indicated that it would not consider terminating reunification services for Dana before the 12-month review, then set for April 29, 2003, and it directed DCSF to obtain complete documentation concerning Danas testing for that review. The juvenile court found that reasonable efforts had been made to reunite the children with Dana, but that returning the children to her custody would create a substantial risk of detriment to them.
On April 18, 2003, Dana noticed the present appeal (B166555) from the rulings at the February 19, 2003 hearing. On May 7, 2003, this court appointed Lori A. Fields to represent Dana in the present appeal. Dana subsequently filed her opening brief in her first appeal. The sole issue raised in this brief was that the juvenile court had failed to issue mandatory notices under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and thus it had failed to ensure a correct determination regarding whether Jenny and Lauren were Indian children. On July 14, 2003, the parties requested this court to remand the matter to the juvenile court with directions to comply with ICWA. We issued an order granting this request on July 17, 2003.
Regarding the present appeal, in a letter filed on July 14, 2003, Fields informed this court that she had reviewed the record and was unable to submit an opening brief on the merits. On August 14, 2003, Dana submitted a letter brief identifying several contentions of error regarding the rulings at the February 19, 2003, hearing. None of these contentions concern the ICWA, and nothing in the record before us indicates the upshot of our remand in the first appeal.
DISCUSSION
Dana contends in conclusory terms that (1) the rulings in question rest on inadmissible evidence, (2) DCFS contradicted itself, and (3) she was denied due process and adequate representation of counsel.
As our Supreme Court explained in In re Sade C. (1996) 13 Cal.4th 952, 954, appellate courts are not obliged to conduct an independent review of the record in dependency appeals when appointed counsel certifies that he or she is unable to identify meritorious issues. In view of Fields failure to locate such issues and Danas cursory claims of reversible error, unsupported by argument or citations to the record, we are authorized to dismiss this appeal as abandoned. (Cresse S. v. Superior Court (1996) 50 Cal.App.4th 947, 955-956.)
We have nonetheless examined the entire record and are satisfied that Field has fully complied with her responsibilities and that no arguable issues exist. The findings of reasonable reunification efforts by DCFS and substantial risk to the children upon return to Dana are amply supported by the record, given the DCFS reports, which indicate that Dana has not completed the case plan. (Cresse S. v. Superior Court, supra, 50 Cal.App.4th at p. 953.) We discern no denial of due process or conduct by Danas trial counsel that rises to ineffective assistance of counsel. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152-1155.)
Finally, Dana asks that we appoint counsel to represent her, and she indicates that she wishes to file a petition for writ of habeus corpus based on ineffective assistance of counsel. She offers no explanation for her request and no basis for her proposed writ. To the extent that these contentions amount to a request that we appoint new counsel on appeal, she has not cited any cognizable basis for granting it.[]
We observe that Dana states that she wishes to show cause why dependency jurisdiction should be terminated, but her counsel will not discuss the matter with her. Because this statement concerns matters properly raised before the juvenile court, we do not address it.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: VOGEL (C.S.), P.J. HASTINGS, J.