Opinion
B331723
11-21-2023
NANCY P., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest; LARRY P., Jr., a Minor, etc., et al., Respondents.
Evane K. Abbassi, for Petitioner. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Real Party in Interest. Children's Law Center of California, Maggie K. Lee, David Cheung and Elizabeth Genatowski, for Minors and Respondents.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate, Los Angeles County Super. Ct. No. 21CCJP03416C-D, Stacy Wiese, Judge. Petition denied.
Evane K. Abbassi, for Petitioner.
No appearance for Respondent.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Real Party in Interest.
Children's Law Center of California, Maggie K. Lee, David Cheung and Elizabeth Genatowski, for Minors and Respondents.
GRIMES, Acting P. J.
INTRODUCTION
Nancy P. is the mother of minors Larry and Lizbeth P., who were declared dependents of the juvenile court under Welfare and Institutions Code section 300 in October 2021. Mother filed in this court a petition for extraordinary writ seeking review of the juvenile court's order terminating family reunification services and setting a section 366.26 hearing (setting order) for December 2023.
Undesignated statutory references are to the Welfare and Institutions Code.
Real party in interest Los Angeles County Department of Children and Family Services (the Department) and the minors both opposed mother's petition.
Mother's writ petition misconstrues both this court's role in reviewing the setting order and the record on which it was made. The petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the facts to those that are relevant to our decision, many of which mother omitted from her petition.
Larry, Lizbeth, and two other siblings not here at issue were detained in July 2021 after mother allowed father access to the children in violation of a criminal protective order. The protective order issued on account of an act of abuse against one of the siblings in 2019 that resulted in criminal convictions against father. Following their detention, the children were initially allowed to remain at home with mother but were removed from the home a few months later because mother continued to allow father into the home.
When the Department went to mother's house to remove the children, mother and Lizbeth went into mother's garage office to retrieve booster seats for the children. In the garage, in the presence of a Department social worker, Lizbeth opened mother's desk drawer where there was a methamphetamine pipe. Mother tried to stop her and then hid the pipe in mother's shirt. Mother eventually relinquished the pipe at the social worker's request. Also on the desk were lighters, cigarettes, and an iPad with a white powdery substance on it that police suspected was cocaine. Mother claimed these items belonged to a neighbor. The juvenile court sustained a subsequent petition based on these facts.
Up to the point when the Department discovered drugs and paraphernalia at mother's house, mother had never tested positive for drugs. Before the case began, she had undergone a single drug test at the Department's request (after missing another) and gave a negative sample. After the case began and the juvenile court ordered weekly testing, she missed each of several scheduled tests.
In June 2022, after the Department's repeated requests that she drug test as ordered by the court, mother furnished the Department several documents purporting to prove she had been testing negative for months at a location she chose unilaterally. The Department called the location to determine the authenticity of the documents and learned they were fraudulent. The juvenile court admonished mother for her failure to drug test and for falsifying test results and reiterated her obligation under her case plan to drug test and undergo a full drug program.
Mother finally submitted to two genuine drug tests in July 2022. She tested positive for methamphetamine both times. She missed numerous other tests from June through November 2022. She admitted in August 2022 she had used methamphetamine over a long period of time, including daily use while father was in prison, but was intent on stopping and complying with all court orders. This admission stood in contrast to the declaration filed earlier in the case wherein mother categorically denied using drugs.
Mother enrolled in a drug treatment program in August 2022. She began testing and returned negative tests. However, in the weeks leading up to the scheduled section 326.22 hearing, she missed several tests, tested negative twice, and then, in August 2023, tested positive for methamphetamine.
We pause here to note the following clearly false statements in mother's petition which are belied by the foregoing information of record: "Since the case was first filed, [mother] has consistently adhered to the court's orders, and she has completed all required assignments." The August 2023 test was "the first time any of [mother's] tests had returned positive." "[Mother] has also never had a history of extensive, abusive, and chronic use of drugs ...." "[T]here have been no positive drug tests by [mother] prior to . . . August 4, 2023. [Mother] has diligently participated in drug tests and meetings and classes for drug and alcohol abuse." "[Mother] has been submitting to random near-weekly drug tests since this case began, and all results have been negative." "[T]he record overwhelmingly reflects mostly negative drug tests, with [a] single outlier." "[T]he positive [August 2023] drug test was a sole outlier." Nowhere in mother's petition does she acknowledge ever having used methamphetamine, possessing drugs during the case, or testing positive for illegal drugs during the case.
Mother's counsel's blatant misrepresentations of the record are reprehensible. Misstating the record, affirmatively or by omission, does or may violate the California Rules of Court and Rules of Professional Conduct. (See, e.g., Cal. Rules of Court, rule 8.452(b)(1); Rules Prof. Conduct, rule 3.3(a)(1).) It also consumes valuable resources of the court and the other parties to these proceedings by burdening them with the job of correcting her. Counsel is admonished that such conduct (we decline to call it advocacy) can carry serious consequences and does not serve her client's interests.
At the section 326.22 hearing, the juvenile court terminated mother's services. Nonetheless, the court assured mother that if she complied with her case plan and showed negative tests it would reinstate them: "I do want to tell you something, mom/ If there is any court that is going to give you another chance, it's this court.; . . [W]e set what we call a .26 hearing to determine whether or not we are going to terminate parental rights. That is in 120 days. [¶] Between now and when we come back on December 18th, it is extremely important that you test, that you continue working your program. What will happen is your attorney will file a motion and ask me to reinstate your family reunification services. If you've done what you should be doing, I'm going to absolutely give you services back. [¶] I don't want you to give up. I will state that substance abuse is a horrible, horrible disease. We see it in here unfortunately numerous times a day. We've also seen several parents recently be able to work their program and overcome it. [¶] I can tell they come in clean. They look different. They seem different, and they have gotten their children back. I don't want you to give up hope. This isn't the last straw." In response, mother filed her writ petition seeking relief based on a grossly misrepresented record.
DISCUSSION
Mother challenges the juvenile court's order pursuant to section 366.26, subdivision (l) and California Rules of Court, rules 8.450(b) and 8.452. Together, these provisions generally permit appellate review of setting orders by extraordinary writ only, with the objective of providing a decision on the merits before the scheduled Welfare and Institutions Code section 366.26 hearing. Writ proceedings under these provisions generally work like an appeal, only faster. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 807.)
As in ordinary appeals, the deference we give the decision on review is of fundamental importance. Appellate courts have long admonished counsel to acknowledge the proper standard of review in juvenile court writ proceedings. (See, e.g., James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021 ["In future, counsel's failure to acknowledge the proper standard of review might, in and of itself, be considered a concession of lack of merit."]; Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762 (Angela S.) ["We have previously cautioned counsel that factspecific arguments which ignore the substantial evidence standard of review are not appropriate. [Citation.] In the future such arguments, which wholly ignore our function as an appellate court, may be deemed frivolous."].)
Mother failed to heed these venerable warnings. Her petition makes no mention of the standard of review. Instead, her argument is entirely that a preponderance of the evidence- the burden of proof that applied in the juvenile court-did not support the juvenile court's order.
We do not, as mother's arguments imply, review setting orders independently. Rather, we review them for substantial evidence. (Angela S., supra, 36 Cal.App.4th at p. 763.) Substantial evidence manifestly supports the juvenile court's setting order.
Mother had a history of drug use that put the children at risk because mother left drugs in places accessible to the children. (Cf. In re Rocco M. (1991) 1 Cal.App.4th 814, 825 ["a trial court is entitled to infer that [an 11-year-old child] is subjected to a substantial risk of serious physical harm when he . . . is placed in an environment allowing access to drugs, with nothing to prevent him from succumbing to the temptation to ingest them"].) The risk was real. The Department literally witnessed one of the children access mother's drug paraphernalia. Though mother denied it was hers, the juvenile court was entitled to discredit her testimony. After all, she had lied about her lack of drug use and submitted fake negative test results to bolster her false narrative.
After her lies were exposed and she tested positive in actual drug tests, mother admitted she had a problem and began treatment. But she relapsed. She missed tests, which the juvenile court was entitled to treat as positive (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217), and she later tested positive.
Mother's drug use, which had put the children at risk through her irresponsible storage of her drugs and drug paraphernalia, was unresolved. Thus, there was substantial evidence supporting the juvenile court's setting order. (See § 366.22, subd. (a)(1) [in ascertaining detriment of returning children, court "shall consider the efforts or progress, or both, demonstrated by the parent or legal guardian and the extent to which they availed themselves of services provided"].)
DISPOSITION
The petition is denied. This opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
WE CONCUR: WILEY, J., VIRAMONTES, J.