Opinion
F052473
5-25-2007
KATELYNN B. et al., Petitioners, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent, KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party In Interest.
Katelynn B. and Michael R., in pro. per., for Petitioners. No appearance for Respondent. B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Real Party In Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
This case arises from a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)) at which the juvenile court terminated reunification services and set a section 366.26 hearing as to petitioners son M. Petitioners seek relief from the courts orders by way of an extraordinary writ petition (Cal. Rules of Court, rule 8.450-8.452), which we will deny.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Petitioners filed a joint writ petition.
STATEMENT OF THE CASE AND FACTS
Petitioners, Katelynn B. and Michael R., are live-in boyfriend and girlfriend and the parents of an infant son, M., who was born prematurely. As a result of his prematurity, M. is brain-damaged and suffers from a potentially blinding condition. Katelynn also has a daughter, G., from another relationship.
Katelynn filed an extraordinary writ petition as to G. in case No. F052471.
In addition, petitioners engage in life-threatening domestic violence. One such incident occurred in February 2006 when, during mutual combat, Michael attempted to strangle Katelynn and threatened her with a gun. When police arrived to investigate, they found a shotgun and drug paraphernalia. However, the incident that gave rise to these dependency proceedings occurred in April 2006 and involved a struggle in which Katelynn attempted to pull M. out of Michaels arms. When Katelynn did not succeed, she threw M.s baby bottle at Michael.
Following this last incident, the Kern County Department of Human Services (department) removed then two-year-old G. and three-month-old M. from petitioners custody and filed a dependency petition on the childrens behalf, alleging the parents placed both children at risk of harm by exposing them to domestic violence and M. at risk by not providing him adequate medical care. (§ 300, subd. (b).) The juvenile court ordered the children detained and the department placed them together in foster care. Following a contested dispositional hearing in June 2006, the court ordered the parents to participate in counseling for anger management, child neglect and domestic violence and visit the children weekly under the supervision of the department. The court also ordered them to submit to random drug testing and enroll in substance abuse counseling if they tested positive for drugs. The court also advised them that if they failed to participate and make substantive progress in their reunification plans, the court could terminate reunification efforts after six months since the children were under the age of three years when removed from parental custody. The court set the six-month review hearing for December 2006.
Over the next six months, Katelynn and Michael refused to drug test. They also waited until November 2006 to begin counseling and then attempted to satisfy the requirements through on-line courses, which the department did not approve. As an example, they completed an on-line parenting class in one day and a 10-hour substance abuse and domestic violence course designed to re-certify licensed professionals. They also enrolled in a domestic violence program but did not attend. In addition, visitation was sporadic and monthly instead of weekly. In light of what it considered the parents failure to comply with their reunification services, the department recommended the court terminate their services at the six-month review hearing and set a section 366.26 hearing to consider a permanent plan of adoption for the children.
The six-month review hearing was continued, contested and conducted in March 2007. Katelynn and Michael personally appeared and were represented by the same attorney. Katelynn testified that a death and illness in the family and misunderstandings concerning the case plan requirements impeded her ability to comply. Michael also testified but had nothing to add to Katelynns testimony except that he did not drug test because he saw no need to.
Two social workers also testified concerning petitioners compliance with services, including visitation. The first social worker was called by petitioners in an apparent attempt to discredit aspects of the departments social services report to the court. The second social worker was called by county counsel and cross-examined by petitioners attorney.
At the conclusion of the hearing, the court found the children could not be safely returned to petitioners custody. The court also found petitioners were provided reasonable services but made no progress in their case plans. Consequently, the court terminated their reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioners argue the courts orders must be vacated, dependency jurisdiction dismissed and M. returned to their custody because their due process rights were repeatedly violated, the attorneys committed intentional malpractice, the department failed to comply with the case plan and filed malicious reports and the social workers falsified their testimony at the six-month review hearing. Though petitioners cite specific portions of the record for each claim of error, they do not explain the significance of the citations to their arguments. Consequently, their petitions do not comport with the content requirements of rule 8.452 (i.e. summary of significant facts and points and authorities) and we could, as real party in interest urges, dismiss the petition as facially deficient. However, we decline to do so and will address the merits of their claims.
Due process requires that the juvenile court afford a parent, whose child has been removed, adequate notice of the dependency hearings and an opportunity to be heard. (In re B.G. (1974) 11 Cal.3d 679, 688-689.) According to the appellate record, petitioners were provided notice of the hearings and an opportunity to present their respective positions and they do not present any evidence to the contrary. In addition, they were at all times represented by counsel. Consequently, we conclude their due process rights were not violated.
Further, there is no evidence the department failed to comply with the case plan as ordered and petitioners fail to establish how it did. For example, there is no evidence the department did not refer petitioners for the services ordered, regularly meet with them to explain their case requirements or assist them in areas that proved to be difficult. On the contrary, the record is replete with evidence that the social workers repeatedly explained the case plan requirements and encouraged petitioners to comply. Petitioners simply refused. For these reasons, we also conclude the department made reasonable efforts to help petitioners successfully complete their court-ordered services.
We further conclude petitioners assertions the department filed malicious reports and the social workers essentially perjured themselves is unsupported by the record. The reports that are allegedly malicious are the first page of the "Juvenile Dependency Petition" (JV-100) and the minute order from the initial detention hearing. There is nothing malicious contained in either of these legal documents. Moreover, the petition was subject to rebuttal at the detention hearing and direct appeal after the dispositional hearing. Since petitioners failed to mount a challenge at either opportunity, they waived their right to have this court review it now.
Similarly, there is no evidence on the record that the social workers committed perjury. Had that been the case, petitioners had the opportunity through their attorney to challenge the veracity of the testimony. Having failed to do so, they allowed the testimony to become part of the body of evidence in this case and are now precluded from challenging it on appeal.
Finally, petitioners do not identify the attorneys who allegedly committed intentional malpractice or explain how malpractice was committed. Consequently, we are at a loss to evaluate that claim. However, to the extent petitioners claim their own attorney was ineffective such a claim would fail because, in order to prevail, petitioners would have to show that their attorneys representation fell below an objective standard of reasonableness and the deficiency resulted in demonstrable prejudice. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Even assuming arguendo trial counsels performance was deficient, there is no evidence petitioners were prejudiced. That is to say, there is no evidence that but for trial counsels failings, the result would have been more favorable to them. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) On the contrary, the cause of the unfavorable result lies squarely at petitioners feet and is directly attributable to their steadfast refusal to participate in their court-ordered services. Consequently, the juvenile court did not err in terminating their services at the six-month review hearing and setting a section 366.26 hearing.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.