Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. J-1175029, Arthur A. Garcia, Judge
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant.
Stephen Shane Stark, County Counsel, County of Santa Barbara and Toni Lorien. Deputy, for Respondent.
YEGAN, J.
Betty P. appeals an order of the juvenile court declaring her daughter, Angel Marie P., adoptable and terminating parental rights. (Welf. & Inst. Code, § 366.26, subd. (c))(1).) Appellant contends, among other things, that the trial court erred in denying her section 388 petition to modify visitation and postpone the section 366.26 hearing. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Facts & Procedural History
On April 11, 2006, Santa Barbara County Child Welfare Services (CWS) filed a petition alleging that appellant was unable to care for her newborn baby, Angel. (§§ 300, subds. (b) & (g).) Appellant was homeless, paranoid, and refused services. Hospital staff reported that appellant appeared to be mentally ill and incapable of caring for the infant.
Appellant reported that the child's father had died in a motorcycle accident five months earlier. CWS determined that appellant had two older children living in a Santa Barbara shelter with a different father. The children had been the subject of more than 30 referrals for child neglect, physical and emotional abuse, and caretaker absence or incapacity.
The trial court sustained the petition after a contested jurisdiction hearing and ordered reunification services. Appellant, however, was uncooperative, refused to sign releases for information, and misled her social worker. Appellant refused to follow the case plan which included substance abuse treatment, mental health counseling, anger management, a neuropsychogical exam, and required that appellant contact Tri-Counties Regional Center (Tri-Counties) and resume services.
At the six month review hearing, the trial court terminated reunification services and set the matter for a section 366.26 hearing. Appellant filed a petition for an extraordinary relief which was denied in an unpublished opinion on April 16, 2007. (B196644.)
On May 9, 2007, appellant filed a section 388 petition to modify visitation and postpone the permanency planning hearing. At a contested section 388 hearing, the trial court found no change of circumstances and concluded that a modification of visitation was not in the best interests of the child.
Appellant's parental rights were terminated on June 18, 2007 following a section 366.26 hearing.
Section 388 Petition
Section 388 provides that a parent may petition the trial court to revive reunification services based on new evidence or changed circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Appellant argues that the trial court erred in sustaining hearsay objections to certain documents attached to her section 388 petition. At the disposition phase of a dependency case, any relevant evidence may be admitted pursuant to section 358 subdivision (b) to help the court determine the child's best interests. (See In re Corey A. (1991) 227 Cal.App.3d 339, 347; In re Tasman B. (1989) 210 Cal.App.3d 927, 932 [hearsay in social study admissible].)
Section 358, subdivision (b) states in pertinent part: "Before determining the appropriate disposition, the court shall receive in evidence the social study of the child made by the social worker, any study or evaluation made by a child advocate appointed by the court, and any other relevant and material evidence as may be offered, including but not limited to, the willingness of the caregiver to provide legal permanency for the child if reunification is unsuccessful." (Emphasis added.) California Rules of Court, rule 5.570(h)(2) provides that the section 388 "hearing must be conducted as a disposition hearing . . . if: [¶] . . . [¶] (B) There is a due process right to confront and cross-examine witnesses. [¶] Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court."
Assuming that the trial court erred in sustaining the evidentiary objections, the alleged err was harmless under any standard of review. (See Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1515 [applying clear and convincing evidence standard]; In re Mark A. (2007) 156 Cal.App.4th 1124, 1145 [applying harmless beyond reasonable doubt standard].) Reunification services were terminated because appellant had not enrolled with mental health, failed to reinstate services with Tri Counties, did not enroll in an anger management or substance abuse program, and was making no progress towards reunification.
At the section 388 hearing, appellant offered documentation to show belated but sincere attempts to follow the case plan. Appellant claims that the trial court erred in sustaining a hearsay objection to a "Program Enrollment" sheet from the Charles Golodoner Counseling Group (Exhibit 4.) The document indicated that appellant was enrolled in an anger management program, that appellant had attended six of twelve sessions, and that appellant was making progress.
Appellant offered the documents to show that (1) Santa Barbara County Adult Mental Health Services (AMHS) would not provide services because appellant did not suffer from a mental illness, (2) that appellant tested negative for drugs on eight occasions after reunification services were terminated, (3) and that appellant had enrolled in an anger management program and a parenting program.
The trial court also sustained a hearsay objection to a Carenet Pregnancy and Resource Center parenting program enrollment document. (Exhibit 5.) Appellant testified that she attended the parenting class when reunification services were terminated and was still attending classes.
The document had little evidentiary value. Appellant testified that the anger management classes were not beneficial and that she did not belong in the group. Appellant's anger was a concern because it posed a danger to the child. Appellant was easily angered when frustrated, a problem that was reported by CWS, the nurses at the hospital, and by case workers.
Janet Korpela, appellant's caseworker for Tri-Counties, testified that that appellant did not want her case reopened and that appellant was suspicious, resistive to services, and wanted limited involvement with Tri-Counties. Korpela recommended that an Independent Living Service Worker assist appellant but appellant was not interested. Attached to the section 388 petition was a Tri-Counties Regional Center "Person-Centered Individual Program Plan" which stated that appellant intended to apply for Section 8 housing assistance but was reluctant to receive services.
The third document attached to the section 388 petition was from Recovery Point Outpatient Services and stated that appellant tested drug free eight times between March 6, 2007 and April 30, 2007. (Exhibit 6.) Appellant contends that the document was excluded as hearsay but the trial court received the document into evidence and considered it. Although appellant submitted to drug testing, she still had not enrolled in a substance abuse program or attended NA/AA meetings as required by the case plan.
Also attached to the section 388 petition was a "Declaration of ADMHS In-Take Officer Ken Nichols" that was not verified. Nichols worked at Santa Barbara County Adult Mental Health Services (ADMHS) and stated that appellant did not qualify for AMDMS services because she suffered from mental retardation which is a developmental disability. Nichols stated that Tri- Counties was "the most appropriate provider of services" and that appellant had told him that "she has re-activated her previous enrollment with that agency."
Appellant did not request that the Nichols declaration be received into evidence and for good reason. The declaration stated that appellant did not qualify for mental health services. Appellant, however, testified that she had an appointment with mental health the week after the section 388 hearing a week and may qualify for services.
Appellant argues that the trial court refused to admit evidence that appellant had adequate housing. No evidence was offered other than that appellant lived in a single room and was looking for better housing. The Tri-Counties Program Plan, which was received into evidence, stated that appellant "hopes to have the assistance of Housing Authority so she can move into something larger to accommodate her children."
The trial court found that appellant failed to prove a change of circumstances or case plan compliance. "[T]he best we have are changing circumstances, not changed circumstances. [¶] And . . . there has been nothing demonstrated, as far as the best interest of the child being served by this modification, apart from a generalized statement that the child should be with the parent . . . ."
The trial court reasonably concluded that it was in not in the best interests of the child to extend visitation or postpone the section 366.26 hearing. The denial of a section 388 motion rarely merits reversal as an abuse of discretion. (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Defective Case Plan
Appellant argues that "[t]he law never requires impossibilities" (Civ. Code, § 3531) and that parental rights were terminated based on a case plan that was impossible to complete. Appellant did not allege this or argue it at the section 388 hearing. She is precluded from asserting this argument for the first time on appeal. (In re Matthew C. (1993) 6 Cal.4th 386, 393.) The order adopting the reunification plan has long since become final. (Ibid.)
At the six month review hearing, the trial court found that adequate reunification services were provided and the appellant was not following the case plan. We reviewed the order in the writ proceeding and concluded that the case plan was tailored to meet appellant's reunification needs, that appellant was apprised of the case plan objectives, and that the services offered were reasonable and appropriate.
Although section 388 provides an "escape mechanism" by which a parent can present new evidence before parental rights are terminated (In re Marilyn H., supra, 5 Cal.4th at p. 309), appellant refused to follow the case plan. Appellant has not advanced beyond supervised visitation, parented the child on a full time basis, and is not willing to accept services necessary to care for the child. "[A]t the eleventh hour and the fifty-ninth minute, [appellant] offered a bare scintilla of proof that she was beginning to rehabilitate. But '[c]hildhood does not wait for the parient to become adequate.' [Citation.]" (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Ineffective Assistance of Counsel
Appellant was represented by a court appointed attorney from detention through disposition. In October 2006, a private attorney represented appellant on a pro bono basis.
Appellant claims she was denied effective assistance of counsel but makes no showing that counsel's performance fell below the standard of reasonableness and that, but for counsel's alleged errors, there is a reasonable probability appellant would have obtained a more favorable result. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255.) Appellant must demonstrate actual prejudice, regardless of whether the claim is based on a statutory right or constitutional right to counsel. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668 [statutory claim under section 371.5]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711-1712 [constitutional due process claim].)
Appellant complains that her court appointed attorney failed to object to jurisdiction, failed to object to the order removing the child, failed to object to the case plan, and failed to appeal each order. She asserts that the dependency orders are not supported by the evidence, are overbroad and invasive, and that the case plan does not address why the child was brought into the dependency system.
Trial counsel was not required to advance meritless arguments, raise futile objections, or file frivolous appeals. (People v. Memro (1995) 11 Cal.4th 786, 834; People v. Williams (1995) 33 Cal.App.4th 467, 481.) Jurisdiction was assumed because appellant exhibited paranoia and anger, was homeless and refused services, and was unable to parent the new born child. Given appellant's refusal to accept services from the hospital, Tri-Counties, CWS, and public health agencies, no competent attorney would have objected to the jurisdictional findings or the disposition order. The case plan was tailored to meet appellant's needs and was based on appellant's own statement that she had previously received substance abuse counseling.
Appellant complains that pro bono counsel was not familiar with juvenile court procedure and could have filed the section 388 petition earlier and subpoenaed witnesses for the hearing. Counsel passionately believed in appellant's case, paid for appellant's drug testing, and accompanied appellant to mental health and to Tri-Counties for an in-take appointment. The problem was not counsel's performance but appellant's anger, suspicion, and unwillingness to accept services. The record does not support a claim of prejudicial ineffectiveness of counsel. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.)
Where, as here, reunification services are terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "A [section 388] petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The judgment (order denying section 388 motion and order terminating parental rights) is affirmed.
We concur: GILBERT, P.J. COFFEE, J.