Opinion
F043667.
10-27-2003
MARCELINA H., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party In Interest.
Marcelina H., in pro. per., for Petitioner. No appearance for Respondent. B.C. Barmann, Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Real Party In Interest.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
Petitioner, Marcelina H., mother of minor A., in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 39.1B) to vacate the orders of the juvenile court made at the 18-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. We will deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In March 2002, the juvenile court assumed dependency jurisdiction over then four-year-old A. after sustaining allegations petitioner placed him at risk of harm by her drug use. (§ 300, subd. (b).) The court ordered a plan of reunification that required petitioner to complete parenting training, participate in substance abuse treatment, abstain from use of illegal substances and submit to random drug testing.
Petitioner was provided 18 months of court-ordered services. During that time, she completed a course in parenting. She also participated in substance abuse counseling from March to July 2002. However, she was discharged for continually denying methamphetamine use despite testing positive for the substance. She enrolled in substance abuse treatment again in October 2002. However, she tested positive for methamphetamine in March, April and May 2003. She continued, however, to deny using methamphetamine. Meanwhile, A. was doing well and his foster family wanted to adopt him. Consequently, in its 18-month status review, the Kern County Department of Human Services recommended the court terminate reunification services and set the matter for permanency planning.
The 18-month review hearing was conducted on July 30, 2003. Petitioner appeared represented by counsel. Counsel argued petitioner had attained three months of sobriety, however, could offer no evidence that would support returning A. to her care. The court terminated reunification services and set the matter for permanency planning.
On August 12, 2003, petitioner filed an untimely notice of intent to file a writ petition. Pursuant to this courts order, petitioner filed a declaration explaining the delay in filing her notice of intent. We find good cause for the late filing and will review her petition on the merits. On October 14, 2003, petitioner appeared for oral argument.
DISCUSSION
Petitioner argues she was denied effective assistance of counsel. Specifically, she claims she provided her attorney evidence A. was medically insured and that she was renting an apartment and her attorney did not offer that into evidence at the 18-month review hearing. At oral argument, she argued her attorney did not assist her in getting into a more appropriate rehabilitation program, refused to disclose the location of her granddaughter, also a dependent of the juvenile court, and refused to allow her to speak to the judge during the dependency proceedings. As a result of her attorneys ineffective assistance, she claims the juvenile court erred in terminating reunification services. We disagree.
The courts statutory options at the 18-month review hearing are to either restore custody of the minor to the parents or terminate reunification services and refer the matter for a section 366.26 hearing. Case law has created some exceptions: (1) no reunification plan was ever developed for the parent, (2) the court finds reasonable services were not offered, or (3) the best interests of the child would be served by a continuance of the 18-month review hearing. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.) In this case, petitioner was given a reunification plan and the court found she was provided reasonable reunification services. Moreover, she did not present any evidence at trial that continued services would be in A.s best interest. Therefore, the juvenile court had no legal basis to do anything other than terminate reunification services.
Petitioner attempts to invalidate the courts termination order by challenging the effectiveness of her trial counsel. In order to establish ineffectiveness of counsel, petitioner would have to prove both deficient performance based on an objective reasonable standard and prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) However, none of the reasons she cites establish that counsels performance was deficient. Moreover, she fails to show that, absent counsels alleged errors, there is a reasonable probability the court would have returned A. to her care. The courts decision to terminate reunification services was based on petitioners failure to attain sobriety and provide a safe home for her son. To that end, we conclude petitioner received effective assistance of counsel and affirm the juvenile courts termination order.
As a final comment, we address petitioners statements during oral argument that she has attained sobriety and is progressing in her drug rehabilitation program. While we commend her efforts, our review is confined to the appellate record. Petitioner may nonetheless present this evidence to the juvenile court by means of a section 388 petition.
Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.