Opinion
B229292
10-25-2011
In re BRENDA R. et al., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARLOS R., SR., Defendant and Appellant.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. CK84051
APPEAL from orders of the Superior Court of Los Angeles County, Elizabeth Kim, Juvenile Court Referee. Affirmed.
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
Carlos R., Sr., the father of five children, appeals from the juvenile court's jurisdiction findings and disposition orders removing the children from his custody and placing them pursuant to Welfare and Institutions Code section 361.2 with their mother, G.S., under the supervision of the Los Angeles County Department of Children and Family Services (Department). Carlos contends his appointed counsel provided ineffective assistance at the jurisdiction hearing by, among other things, failing to call any witnesses or to cross-examine the social workers who prepared the Department's reports that were admitted into evidence. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Detention of the Children
The Department received a child protection hotline referral on September 9, 2010 reporting Carlos and his neighbor/girlfriend R.A. had engaged in domestic violence in Carlos's home, Carlos was an alcoholic and R.A. was a substance abuser. Carlos Jr. (13 years old), Miguel (11 years old) and Jorge (9 years old) were detained and placed with their mother, G.S. The two older children, Brenda (17 years old) and Leslie (15 years old), had previously left Carlos's home and were already living with G.S.
A section 300 petition was filed on September 15, 2010 alleging all five children were at substantial risk of suffering serious physical harm inflicted nonaccidentally because of Carlos's and R.A.'s history of engaging in violent altercations, including one occasion when R.A. stabbed Carlos with a knife in the presence of the children, as well as Carlos's and G.S.'s history of domestic violence during which Carlos had been the aggressor (§ 300, subd. (a)). The petition also alleged the children were at substantial risk of suffering serious physical harm because of Carlos's inability to protect or provide regular care to them as a result of his daily abuse of alcohol (§ 300, subd. (b)) and because he allowed R.A. to frequent their home and have unlimited access to the children notwithstanding her prior physical abuse of Carlos Jr. In addition, the petition alleged G.S. failed to take action to protect the children by allowing them to reside in Carlos's home.
The allegation Carlos had failed to protect the children notwithstanding R.A.'s physical abuse of Carlos Jr. was also the basis for an abuse-of-sibling count. (§ 300, subd. (j).)
At the initial hearing the court ordered the children detained from Carlos and released them to G.S. on the condition G.S. not allow Carlos into her home. Carlos was allowed monitored visitation in a neutral setting; G.S. was not permitted to serve as the monitor.
2. The Department's Jurisdiction/Disposition Report
The matter was continued to October 6, 2010 for a pretrial resolution conference and jurisdiction/disposition hearing. The Department's report for that hearing stated Brenda told the Department's dependency investigator she had left Carlos's home and was now living with G.S. Brenda did not see R.A. stab Carlos, but she did see the large cut on his arm after the attack; on prior occasions Brenda had seen R.A. pushing and hitting Carlos. Brenda said Carlos drinks almost every day. Brenda also reported that G.S. and Carlos often fought when they lived together and on one occasion G.S.'s forehead bled after Carlos threw and hit her with an object.
Although the court appeared to continue the matter to October 6, 2010 only for a pretrial resolution conference, the Department's notice of hearing on petition advised all parties a jurisdiction/disposition hearing would be held on that date. (See generally In re Wilford J. (2005) 131 Cal.App.4th 742, 749-753.)
Like her older sister, Leslie had left Carlos's home to live with G.S. Leslie described Carlos and R.A. as arguing a lot and being verbally abusive to one another; she had seen bruises on Carlos's face because R.S. punched him. Leslie confirmed Carlos frequently drinks (usually four days a week) and often does so until he is completely intoxicated. She also said Carlos has repeatedly threatened G.S.
Carlos Jr. described Carlos and R.A. as fighting almost every day that R.A. was at the house. On one occasion Carlos had to struggle with R.A. to pull a knife away from her. Carlos Jr.'s two younger brothers and his adult older brother, Hector (20 years old), were present at the time. Carlos Jr. also said Carlos is a frequent abuser of alcohol, sometimes drinking until he blacks out. Carlos Jr. denied he had seen R.A. using drugs in the home, but acknowledged that R.A. had scratched him on two separate occasions. Carlos Jr. said his father was too drunk to help him at the time. Carlos Jr. also told the investigator Carlos used to threaten G.S. In their interviews both Miguel and Jorge gave similar accounts of their life at Carlos's home.
Hector, who was living with Carlos to help care for his younger brothers after his two sisters went to G.S.'s home, told the investigator his father and R.A. argued a lot and he remembered arguments between Carlos and G.S. According to Hector, the frequent fighting was the reason G.S. left Carlos. Carlos had been abusing alcohol for as long as Hector could remember. Hector's girlfriend, who helped Hector with the younger children, confirmed the frequent fighting between Carlos and R.A. and Carlos's ongoing alcohol abuse.
For her part, G.S. said the children had told her they did not want to be alone with Carlos because of his drinking and because he brought R.A. over to the house. She reported Carlos drank almost every day for the 18 years she had lived with him and had physically attacked her several years ago (throwing a telephone at her head). G.S. believed the children were too young to remember the incident.
In his interviews with Department personnel Carlos denied most of the allegations in the section 300 petition. He claimed G.S. had abandoned their children to run off with another man and asserted people were out to destroy him. Specifically, Carlos blamed G.S., suggesting she had opened the case against him because she did not want to continue paying child support. According to Carlos, R.A. helped him with the children; he said she never did anything harmful to the children and insisted he was able to protect them. Carlos ultimately acknowledged he and R.A. sometimes argued. (He denied she had ever stabbed him, but conceded she was holding a knife during one of their arguments.) He admitted he drank alcohol "casually" and "occasionally," denied he had an alcohol problem and repeatedly insisted it is not illegal to drink alcohol.
The Department recommended the children remain placed with G.S. and that Carlos receive family reunification services. The Department also recommend counseling for the children.
3. The Jurisdiction/Disposition Hearing
Prior to the jurisdiction hearing G.S. agreed to submit the matter based on the Department's jurisdiction/disposition report with its attachments (including the initial detention report). G.S. also agreed to a disposition plan that included a home-of-parent-mother order for all five children and family maintenance services for her including domestic violence counseling and parent education.
Apparently Carlos had also agreed to submit the matter and to the negotiated resolution for the disposition orders. However, when the court addressed Carlos to confirm his understanding and agreement, Carlos stated, "I really don't know what is going on. I am under a lot of pressure and . . . I just don't want to submit that these allegations are true. . . . Basically I said submitting but not admit to the charges that are being brought onto me. I am going to go through a program to try to get my kids back. There is allegations here that are not true, right, and I don't want that to be held against me in the future time stating that I stated that that was correct, that everything is correct that's in there."
Following a side bar conference with the court, Carlos's counsel stated he wanted a contested hearing. The court responded, "All right. So I'll return the waiver to you at this time." The court then proceeded with the jurisdiction hearing. Counsel for the Department moved into evidence without objection the detention report and the jurisdiction/disposition report with all attachments. No further evidence was presented by any party, and no argument was made. The court then asked Carlos's counsel, "Your client's case is that it is his position that the allegations against him are not true?" Counsel responded, "That's correct, your honor."
The court sustained the petition, as amended by interlineation to strike the count alleging Carlos had failed to protect the children from a dangerous home environment created by his allowing R.A. to abuse illicit drugs in the home. Proceeding to disposition, the court heard argument from counsel and then ordered the children removed from Carlos's home and found G.S. was a noncustodial parent who desired custody of the children and it would not be detrimental to their safety, protection or physical and emotional well-being to be placed with her (see § 361.2, subd. (a)). Accordingly, the court ordered the children placed with G.S. and ordered Carlos to participate in an intensive or 52-week domestic violence counseling program and an alcohol abuse program with random testing. G.S. was ordered to attend domestic violence counseling and parent education classes.
Carlos filed a timely notice of appeal.
At a progress hearing in November 2010 the case was transferred from Los Angeles Superior Court to Orange County Superior Court. Notwithstanding that transfer, jurisdiction to consider Carlos's appeal from the Los Angeles juvenile court's findings and disposition orders remains in this court. (In re Lisa E. (1986) 188 Cal.App.3d 399, 404-405.)
DISCUSSION
Parents have a statutory right (§ 317.5) and, at least in proceedings that may lead to the termination of parental rights, a due process right to competent counsel in dependency cases. (In re Darlice C. (2003) 105 Cal.App.4th 459, 462-463; accord, In re V.V. (2010) 188 Cal.App.4th 392, 398; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659; see Cal. Rules of Court, rule 5.660(d).) To sustain a claim of ineffective assistance of counsel, the parent must show counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability the result would have been more favorable if counsel had provided adequate representation, the same standard that applies in a criminal case. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254.) "When a claim of ineffective assistance of counsel is raised on appeal, we examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is affirmed 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" (Id. at p. 255; see In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541 ["[u]nless the record affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission, we must affirm the judgment"]; In re Daisy D. (2006) 144 Cal.App.4th 287, 293 [same].)
Carlos emphasizes, although his counsel requested a contested jurisdiction hearing, he then did nothing further to protect Carlos's rights. Specifically, counsel did not seek to cross-examine either the social worker who had prepared the jurisdiction/disposition report (see § 355, subd. (b)(2) ["[t]he preparer of the social study shall be made available for cross-examination upon a timely request by any party"]) or any of the individuals whose statements to the Department's investigator and social workers were summarized in that report (including G.S., Hector, Brenda, Leslie and Carlos Jr.). Similarly, counsel did not subpoena any witnesses to testify on Carlos's behalf and did not obtain the police report regarding either of the two incidents when officers came to Carlos's home following violent confrontations.Carlos contends there could be no satisfactory practical or tactical purpose for his counsel's omissions.
As the Department notes, it is not apparent from the record that any reports were generated for either incident in which the police responded to Carlos's home. The social worker wrote law enforcement asking for reports regarding Carlos, G.S. or R.A. None was provided.
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Carlos's argument fails for several independent reasons. First, as Carlos himself recognizes, all the evidence in the jurisdiction/disposition report regarding the allegations in the section 300 petition was unfavorable. Everyone who was interviewed uniformly reported Carlos had a serious alcohol abuse problem; Carlos's children, including Hector, stated Carlos and R.A. had a violent relationship and confirmed he had engaged in acts of domestic violence when still living with G.S. There is no indication cross-examination of any of those witnesses would have been helpful to Carlos; and, therefore, no showing that the decision not to challenge the witnesses' statements as set forth in the jurisdiction/disposition report fell below an objective standard of reasonableness.
In addition, as Carlos made clear when he was questioned by the court regarding his waiver, although he did not want to admit the truth of the allegations in the petition, he was prepared to have the petition sustained and to participate in programs with a goal of reunifying with his children. His counsel's decision to request a contest, so the petition was subject to adjudication rather than a plea, accomplished that objective.
Indeed, because G.S. was a noncustodial parent who had requested custody of the children, the proceedings were governed in part by section 361.2, rather than section 361.5, which permitted the juvenile court in its discretion to order services solely to G.S. to allow her to retain later custody without court supervision, rather than order services for both G.S. and Carlos. (§ 361.2, subd. (b)(3).) As discussed, the Department recommended the court place the children with G.S. but order services for Carlos as well as G.S. Carlos's counsel may well have made the tactical decision that cross-examining any of the adverse witnesses, including the social workers who prepared the reports admitted into evidence, would reinforce the negative aspects of their statements and thus jeopardize the court's willingness to adopt that recommendation. In light of this reasonable explanation for counsel's tactical decision, we must reject Carlos's claim of ineffective assistance.
DISPOSITION
The orders of the juvenile court are affirmed.
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PERLUSS, P. J.
We concur:
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WOODS, J.
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JACKSON, J.