Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Harry L. Jacobs, Commissioner. Super. Ct. Nos. JP000108A & JP000108B
M.G., in pro. per., for Petitioner.
No appearance for Respondent.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her son M. and daughter A. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner is the mother of four children, A.C., K.C., M. and A. She has a long history of drug use, necessitating child welfare intervention. In 2005, she locked minor A.C. in a room while she was under the influence of methamphetamine. The police found the home to be in a deplorable condition and released A.C. to his father. A.C. was ultimately placed in a guardianship with a paternal relative.
In July 2006, petitioner gave birth to a son, K.C. Both she and the baby tested positive for methamphetamine. K.C. was detained and petitioner was offered reunification services. In March 2007, the juvenile court terminated petitioner’s reunification services and selected a permanent plan of adoption for K.C. In August 2007, the juvenile court terminated petitioner’s parental rights.
In November 2008, the Merced County Human Services Agency (agency) received a report that petitioner was using drugs and gave birth to M. at home so her drug use would not be detected. Since petitioner did not appear to be under the influence, she was counseled about drug use and the allegations were deemed unfounded.
In March 2009, the agency received a referral that petitioner used methamphetamine and gave birth to a baby two weeks prior and did not take the baby to the doctor. Petitioner was uncooperative and the allegations were deemed inconclusive.
In July 2009, the agency received a report that petitioner was using drugs and left M. and A. with their father, Kenneth, for days at a time and that there was no food in the house. During the investigation, the agency discovered that Kenneth was incarcerated for domestic violence. Petitioner initially agreed to participate in voluntary family maintenance services. However, she resumed her relationship with Kenneth in October 2009 and the agency was unable to contact her. Petitioner and Kenneth refused to participate in services and the agency closed the case.
The instant dependency proceedings were initiated in early October 2009 after a social worker from the agency went to the family home to investigate allegations that petitioner was smoking marijuana while holding the children (then two-year-old M. and eight-month-old A.) and engaging in domestic violence with Kenneth and that there was no electricity in the home. Petitioner answered the door and stepped onto the porch and closed the front door behind her. She said she was the only one home and that the children were with Kenneth. The social worker subsequently found A. lying on the living room floor. Petitioner stated she and Kenneth were tapping into the neighbor’s electricity and had been without electricity for a couple of weeks. Prior child welfare reports reflected the family had been without utilities since August 2009. The social worker discovered numerous extension cords and power strips spread throughout the residence, which she opined created a fire hazard.
The social worker also asked petitioner if she and Kenneth were living together again and petitioner said they were. When the social worker spoke to petitioner in August, petitioner said Kenneth was arrested the night before for domestic violence. At that time, the social worker noticed petitioner had marks on her chin and neck. Petitioner stated Kenneth punched, kicked, and strangled her; and the children were present during the assault. When asked how many times Kenneth hit her in the past, petitioner responded “Countless.” During the October 2009 visit, petitioner also had a small amount of marijuana in her pocket but denied smoking it in the presence of the children.
The Narcotic Task Force arrested petitioner on an outstanding warrant and the social worker took A. into protective custody. The agency filed a dependency petition on behalf of both children pursuant to section 300, subdivision (b) (failure to protect), alleging petitioner exposed them to a substantial risk of harm by using drugs, engaging in domestic violence and creating a fire hazard in the home. In its report for the detention hearing, the agency opined there were no services available to prevent the removal of the children and reported two paternal aunts had requested placement and were being considered.
The detention hearing was conducted over three sessions in October 2009. At the first session, the juvenile court appointed counsel for petitioner and Kenneth who were both present. Petitioner told the court M. was with petitioner’s father and agreed to surrender M. to the agency. The court found the agency made reasonable efforts to prevent removal and ordered both children detained. The court also continued the hearing because Kenneth’s court-appointed attorney was not present.
On October 13, 2009, at the second session, the court stated it received and reviewed the dependency petition and the agency’s detention report. The court also granted petitioner a Marsden hearing. Petitioner told the court her attorney did not listen to her questions concerning her children and their placement and she believed the fact that he was paid by the same county opposing her was a conflict of interest. Petitioner’s attorney explained that petitioner was more focused on regaining custody of her children than helping him address the agency’s allegations. He assured the court he would conduct a contested hearing if petitioner wanted one and the court assured her she had that choice. Petitioner also told the court she believed her attorney was withholding favorable evidence from the court such as her participation in Narcotics Anonymous meetings. The court denied her Marsden motion and gave her attorney an opportunity to speak with her before resuming the hearing.
People v. Marsden (1970) 2 Cal.3d 118.
After the juvenile court recalled the detention hearing, petitioner’s attorney informed the court petitioner wanted her children back as soon as possible. Petitioner also wanted visitation and wanted to know where they were and how they were doing. The court continued the hearing. County counsel asked the court to order petitioner to drug test, explaining she refused to do so voluntarily. The court ordered her to submit to hair follicle and urine testing. She did and tested positive for methamphetamine and marijuana.
On October 15, 2009, the juvenile court concluded the detention hearing. At the request of petitioner’s attorney, the court conducted a hearing pursuant to People v. Musa (2000) 220 F.3d 1096 (Musa) to determine whether a breakdown in attorney/client communication had occurred and, if so, whether it prevented adequate legal representation. Petitioner’s attorney told the court petitioner relied on her father’s advice, which included not trusting her attorney. In addition, she refused to meet privately with her attorney and parroted her father’s answers to her attorney’s questions. Consequently, petitioner’s attorney asked to be relieved. The court granted the Musa motion and appointed petitioner a new attorney.
Petitioner’s new attorney denied the allegations on petitioner’s behalf and submitted the matter. She also informed the court petitioner was requesting the children be placed with a relative and that she was living with her father. Petitioner and Kenneth waived their rights to a contested detention hearing and the court found prima facie evidence the children were minors described by section 300, subdivision (b). The court found there was a substantial danger to the physical health of the children if they remained in their parents’ custody and there were no reasonable means to protect them without removing them from their parents. The court placed the children in the temporary custody of the agency and set a jurisdictional/dispositional hearing for November 2009.
Meanwhile, the agency filed its report for the hearing, recommending the juvenile court exercise its dependency jurisdiction and deny both parents reunification services. The agency recommended the court deny petitioner reunification services based on section 361.5, subdivision (b)(10) and (11) because petitioner’s reunification services and parental rights as to K.C. were terminated and she subsequently failed to treat her drug abuse.
The jurisdictional/dispositional hearing was continued and conducted as a contested hearing in December 2009. Petitioner argued she and the children were bonded and it would be in their best interest to reunify with her. She was the only witness.
Petitioner testified, acknowledging her failure to reunify with K.C. which she attributed to his removal at birth and the absence of a parent/child bond. M. and A.’s circumstances were different, she said, because she raised them from birth and shared a bond with them.
Petitioner also testified she had not used methamphetamine for over two years. When asked why she tested positive for methamphetamine at such a high level in October 2009, she said it was because her father gave her Sudafed. She admitted using marijuana approximately a month and a half prior to the hearing.
On cross-examination by county counsel, petitioner testified K.C. tested positive for drugs at birth, resulting in his removal from her custody. As a result, she checked herself into a substance abuse treatment program twice, the last time being in August 2007 when she was pregnant with M. Since then, she attended Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. However, she had not attended meetings for a couple of weeks.
Following testimony, petitioner’s attorney argued petitioner was able to reunify with M. and A. and it would be in their best interest to offer her reunification services. Minors’ counsel agreed with petitioner that M. and A.’s case was different from K.C.’s and petitioner seemed to have made progress. However, minors’ counsel was concerned about petitioner’s recent drug use. County counsel argued petitioner’s drug use never ceased despite reunification services and the only difference this time was the parent/child bond. County counsel described petitioner’s involvement in AA/NA as “passing” and argued it would not serve the children’s best interests to pursue reunification.
At the conclusion of the hearing, the juvenile court adjudged M. and A. dependents of the court and denied petitioner reunification services pursuant to section 361.5, subdivision (b)(10) and (11). In doing so, the court stated petitioner was in “deep denial about her addiction” and had not made substantial progress. The court also denied Kenneth reunification services and set a section 366.26 hearing for April 2010.
Kenneth did not file a writ petition.
Petitioner then asked about the children’s placement with her father. Her attorney advised the court she explained to petitioner that petitioner’s father would need to apply for an exemption from the agency and that the matter of placement could be raised before the juvenile court prior to the section 366.26 hearing.
Petitioner filed a writ petition and appeared for oral argument.
DISCUSSION
A. Effectiveness of Trial Counsel at the Detention Hearing
Petitioner contends her newly appointed trial counsel was ineffective at the detention hearing because she submitted the case on the agency’s report without first reviewing the report with petitioner. We find no merit to petitioner’s claim.
A party claiming ineffectiveness of counsel in juvenile dependency proceedings must show trial counsel’s performance was deficient. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Counsel’s performance is deficient if it “‘fell below an objective standard of reasonableness … under prevailing professional norms.’” (People v. Ledesma (1987) 43 Cal.3d 171, 216.)
By submitting petitioner’s case based on the agency’s report, petitioner’s attorney agreed on petitioner’s behalf to the court’s consideration of the contents of the report as the only evidence in the matter. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) “Under such circumstances, the court will not consider any other evidence in deciding whether the allegations are true. [Citation.]” (Ibid.) Petitioner effectively did the same thing when she waived her right to a contested detention hearing. The appellate record reflects the juvenile court advised petitioner she had a right to a contested hearing, to have her attorney question witnesses, including the social worker who prepared the report, the right to present evidence on her own behalf, to testify or remain silent. Petitioner stated her understanding of her rights and her desire to forfeit them. As a result, the juvenile court found she made a voluntary, knowing and intelligent waiver of her right to contest the evidence in the petition and detention report.
Having waived her right to challenge the agency’s evidence, petitioner cannot now argue trial counsel’s performance was deficient for allowing the juvenile court to consider that evidence alone in deciding whether to detain the children. Consequently, we conclude on this record trial counsel was not ineffective at the detention hearing.
B. Detention Order
Petitioner contends the juvenile court erred in ordering M. and A. detained. We disagree.
The purpose of the detention hearing is to give the juvenile court an opportunity to make a determination regarding the necessity of continued detention of a child temporarily removed from parental custody. The juvenile court must return the child to parental custody unless it finds to do so would pose a substantial danger to the child’s physical health or the child is suffering from severe emotional damage and there are no reasonable means to protect the child’s physical or emotional health short of removal. (§ 319, subd. (b)(1).)
The juvenile court must also find the child falls within its jurisdiction under section 300 and continuance in the parent’s custody is contrary to the child’s welfare. (§ 319, subd. (b).) However, petitioner does not argue the sufficiency of the evidence to support these two findings.
Other grounds to justify continued detention are not pertinent here. (See § 319, subds. (b)(2), (3) and (4).)
On a challenge to the juvenile court’s findings and orders, we review the appellate record for substantial evidence, resolving all conflicts in favor of the court and indulging in all legitimate inferences to uphold the court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On this record, we conclude substantial evidence supports the juvenile court’s detention order.
Petitioner contends the children were never in danger. To that end, she asserts the children were not in the same room when Kenneth assaulted her and she obtained a court-order restraining him from having contact with her. In addition, she argues there was no evidence the extension cords and power strips created an actual risk of harm to the children. However, petitioner told the social worker the children were present when Kenneth assaulted her and there is no mention in the detention report of a restraining order. By attempting to clarify and present new evidence, petitioner is asking this court to function as a fact-finder, which we are precluded from doing. We are a reviewing court and our review is confined to that evidence considered by the juvenile court; in this case, the dependency petition and the detention report.
According to the detention report, petitioner and Kenneth engaged in serious and ongoing domestic violence. Kenneth punched, kicked and strangled petitioner and hit her “countless” times while the children were home. Despite that, petitioner allowed him to return home after he was released from custody. Kenneth’s presence in the home combined with the fact neither he nor petitioner received any counseling for domestic violence means the children were still at risk of exposure to domestic violence if returned to petitioner’s custody. Further, as to the risk of an electrical fire, we conclude a reasonable inference can be made that such a risk existed given petitioner’s unmonitored and unauthorized channeling of electricity into the family home by means of multiple power strips and extension cords. However, even if petitioner is correct and there was no fire hazard, in our view, evidence of petitioner and Kenneth’s ongoing domestic violence was sufficient to support the juvenile court’s conclusion M. and A. could not be returned to petitioner’s custody without placing them at a substantial risk of danger.
Further, we conclude substantial evidence supports the juvenile court’s finding the agency made reasonable efforts to prevent the children’s removal. According to the petition, petitioner was offered and received voluntary family maintenance services from July through October 2009 but refused to cooperate. In addition, she made no effort to improve the family situation. When the agency returned two months later, Kenneth was living in the home and petitioner was still taking drugs. By her actions, petitioner demonstrated that voluntary family maintenance services to keep the children in the home were not an option.
Petitioner asserts the only reference to the agency’s efforts to prevent the children’s removal is a conclusory statement in the detention report that in October 2009 no services were available. However, on appeal, petitioner bears the burden of affirmatively showing error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Other than voluntary family maintenance services, which petitioner rejected, she fails to identify what services the agency could have offered or what efforts the agency could have made to prevent the children’s removal. In that she failed to meet her burden on appeal, we must concur the agency made all reasonable efforts to prevent the children’s removal and affirm the juvenile court’s detention order.
C. Relative Placement
Petitioner contends both paternal aunts wanted to be considered for placement but as of the detention hearing on October 15, 2009, the agency had made no meaningful effort to contact them. However, the record does not support her contention.
If, as in this case, a child is not released to parental custody, the juvenile court may order the child placed in the assessed home of a relative. (§ 319, subd. (f)(1).) The key word is “assessed.” The detention report indicates the agency was in the processing of assessing the paternal aunts when it filed its detention report. The report indicated the social worker attempted but failed to contact one of the aunts. Further, the reporter’s transcript for the detention hearing records petitioner’s attorney’s statement that petitioner was requesting relative placement and that the process was underway. From that, we can reasonably infer the agency was in the process of assessing the paternal aunts for placement. Consequently, we find no merit to petitioner’s claim the agency failed in its duty to assess the paternal aunts for placement.
D. Denial of Reunification Services
Petitioner contends the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(10) and (11) because she made reasonable efforts to treat her drug problem. We disagree.
The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent unless the court finds by clear and convincing evidence that the parent is described by any of the 15 exceptions set forth in section 361.5, subdivision (b). (§ 361.5, subds. (a) & (b)(1)-(15).) Subdivision (b)(10) of section 361.5 (subdivision (b)(10)) authorizes the denial of reunification services if the court finds,
“[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent... failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and... this parent... has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent....”
Subdivision (b)(11) of section 361.5 (subdivision (b)(11)) is similar in that it authorizes the denial of reunification services to a parent whose parental rights have been “permanently severed” as to a sibling or half sibling of the child and that parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling.”
“‘On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ [Citation.] Section 361.5, subdivision (b) requires bypass findings to be supported by clear and convincing evidence. ‘“The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’” (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.)
Petitioner does not dispute that subdivision (b)(10) and (11) applies to her insofar as her reunification services for and parental rights to K.C. were terminated. Rather, she contends there was insufficient evidence for the juvenile court to find that she failed to treat her drug problem after her reunification services and parental rights to K.C. were terminated. She claims the juvenile court based its finding on the one positive drug test in October 2009 and discounted her testimony she had not used methamphetamine in over two years, checked into substance abuse treatment twice and attended AA/NA meetings since 2007.
We conclude substantial evidence supports the juvenile court’s finding. K.C. was removed from petitioner’s custody because of her drug use. In August 2007, the juvenile court terminated her parental rights after she failed to reunify. Over the ensuing two years, the agency received reports that petitioner was using drugs and gave birth to M. and A. at home to avoid detection. It was her marijuana use that, in part, prompted the agency’s visit to her home in October 2009. She confirmed her drug use by testing positive for methamphetamine that same month at a high level.
Further, the juvenile court did not find petitioner’s testimony credible. She testified she had not used methamphetamine for two years yet there was evidence she tested positive for the drug in October 2009. In addition, there was evidence petitioner attempted but failed to complete drug treatment twice and that she attended NA meetings but not regularly. Drawing every reasonable inference from this evidence to support the juvenile court’s rulings, we conclude substantial evidence supports the juvenile court’s finding petitioner failed to treat her drug problem subsequent to the termination of her reunification services and parental rights as to K.C. Accordingly, we affirm the juvenile court’s orders denying her reunification services pursuant to section 361.5, subdivision (b)(10) and (11) and setting a section 366.26 hearing to implement a permanent plan. We find no error on this record.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.