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JENNIFER S., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Petitioner Jennifer S. (Mother) has two sons, K.S. (born March 2006) and R.S. (born May 2007). The children's father or fathers were never identified by Mother and are thus not parties to the dependency proceedings. On November 24, 2008, real party in interest the Department of Children and Family Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (g), and (j),1 alleging that Mother physically abused the children and that she had mental and emotional problems. The children were placed in a foster home. On February 5, 2009, the juvenile court sustained amended allegations in the petition pursuant to subdivision (b) and dismissed the allegations pursuant to subdivisions (a), (g), and (j). On September 16, 2010, the court terminated family reunification services and scheduled the matter for a January 13, 2011 section 366.26 hearing. Mother filed a petition for extraordinary writ on October 18, 2010. The Department filed an answer on November 4, 2010, and Mother filed several documents thereafter. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2008, Mother was at a welfare office in Los Angeles when she was observed slapping one of her sons. The children were bruised and dirty. When questioned, Mother said she was bipolar and not taking her medications.
The children were placed in a foster home, and Mother was allowed monitored visits. The court also ordered that Mother be provided reunification services, including parenting education, individual therapy, and psychiatric evaluations. When Mother was interviewed by a social worker in December 2008, she denied that she had physically abused the children. She acknowledged that she was homeless, on welfare, and had been diagnosed as bipolar. She conceded she had not been taking her medications since her recent pregnancy. Mother admitted that she had suicidal thoughts and that she had a criminal record. During her first monitored visit, she began directing threats under her breath to the social worker, who then called the police.
In February 2009, the social worker reported that Mother had been asked to leave two different parenting classes because of disruptive behavior. She was being treated for her bipolar disorder. Her visits with the children were consistent and appropriate.
The March 2009 social worker's report indicated that Mother was still not enrolled in a parenting class. Her monitored visits were consistent but Mother often displayed inappropriate behavior, such as muttering threats under her breath.
At the March 26, 2009 disposition hearing, the court found that substantial danger existed to the children necessitating their removal from Mother's custody. The court maintained monitored visitation and set the matter for a May 2009 interim hearing.
The social worker's report for the May 2009 hearing indicated that Mother was renting a home and going to therapy and parenting classes. Mother told the social worker she was thinking of moving to Illinois where her mother (maternal grandmother) lived, but she later changed her mind. The children were doing well in their foster home. Mother was visiting the children three times a week and behaving appropriately. The Department allowed her first unmonitored visit, which was a success.
At the May 2009 hearing, Mother was present and testified that she was going to move to Illinois as soon as possible because her mother could help her with the children. The court ordered unmonitored visitation and a study of the suitability of maternal grandmother's home in Illinois.
A court-ordered psychological evaluation of Mother submitted after the May hearing found her to be bipolar but high-functioning and recommended a slow process of reunification with the children.
On May 28, 2009, Mother was arrested for felony narcotics possession. The Department then filed a section 388 petition requesting that future visits be monitored. The petition was granted in July 2009.
The social worker reported that in September 2009, Mother admitted to using crack cocaine, but denied she was a drug addict. The social worker noted that Mother had not shown up for five out of eight random drug tests between June and September 2009 and tested positive once. Mother had completed a parenting education program. The children were now in a new foster home and doing well. Mother was attentive and affectionate during her monitored visits. Mother was still mentioning a move to Illinois.
In September 2009, maternal grandmother's home was approved for adoption but Mother said she did not want the children adopted by maternal grandmother.
At the September 2009 six-month review hearing, the matter was continued until February 2010. In the report prepared for the February hearing, the social worker indicated that Mother had relocated to Illinois and the children, then two and three years old, were placed with maternal grandmother. Mother was attending therapy, drug rehabilitation, and psychiatric counseling. However, due to friction between maternal grandmother and Mother, visits with the children ceased for a time. The social worker opined that Mother's emotional instability impaired her ability to supervise or care for the children and that the concerns about her parenting ability had not been resolved, even though she was in partial compliance with the case plan. She recommended terminating reunification services. Monitored weekly visits resumed.
The social worker's report dated July 2010 stated that R.S. had sustained an injury to his arm while in Mother's care. Mother refused to seek medical attention. Later, when maternal grandmother took R.S. to the hospital, x-rays revealed his arm was fractured. There was evidence of troubling behavior at visits. For example, maternal grandmother reported that Mother told the children to hold sparklers while Mother lit them, resulting in K.S. hurting himself when he touched the end of the sparklers. Mother taped a stick under R. S.'s knee, making him cry and leaving a deep red impression on his leg. The children often came back from visits with injuries and illnesses. Mother had stopped attending a drug program and made false allegations of child abuse against maternal grandmother. Mother also attempted to jump out of the social worker's vehicle while it was moving. Mother left a number of angry ranting messages on several social workers' voicemails.
On July 26, 2010, the court ordered that all prior orders remain in full force and effect and continued the matter until September 16, 2010.
At the September 16, 2010 contested section 366.22 hearing, Mother, who was still living in Illinois, was not present. She was represented by counsel. Her counsel argued that Mother was in compliance with the case plan and had a home. Because it was difficult to monitor the visits in Illinois, counsel requested unmonitored visits. Counsel for the children joined the Department's request to terminate reunification services.
The court found that Mother was in full compliance with parenting classes and in partial compliance with individual counseling. It found that Mother had made substantial progress towards alleviating or mitigating the causes necessitating placement but that the return of the children to Mother's physical custody would create a substantial risk of detriment and severe emotional or physical harm to the children. The court concluded there was no substantial probability that the children would be returned to Mother within six months. It noted that despite two years of services, Mother continued to act inappropriately and erratically and that she was “not ready for these kids.” The court terminated family reunification services. It set the matter for a section 366.26 permanent plan hearing for January 13, 2011. Mother's writ petition followed.
DISCUSSION
I. Mother's Allegations
Mother's petition, filed in pro. per., indicated that she was seeking relief from the court's order of July 26, 2010. The case was set for an 18-month review hearing on that date. The only orders entered on that day were an order that continued the section 366.22 hearing until September 16, 2010, and an order to show cause re sanctions for the Department's failure to file a timely report. We assume, as did the Department, that Mother meant to seek relief from the September 16 order terminating reunification services and setting the matter for a section 366.26 hearing.
Mother's rambling petition is difficult to decipher. The gist of her complaint is that she was “accused of misconduct that did not occur,” received poor legal representation, and was not given an opportunity to voice her concerns, one of which is that maternal grandmother is abusive. She also alleges that various social workers filed false reports with the court. Although Mother did not file a formal reply, she addressed a number of letters to the court which we have read and considered. In essence, they contain the same allegations set forth in her petition. Mother also sent letters from friends who claim that she is doing everything possible to comply with the orders of the juvenile court and to care for the boys.
Although Mother has failed to set forth her specific claims in the petition, we assume (as did the Department) she is asserting that there is insufficient evidence to support the juvenile court's orders terminating reunification services and setting a section 366.26 hearing and that she received ineffective assistance of counsel. We address those contentions in order.
II. Insufficiency of the Evidence
We review an order terminating reunification services for abuse of discretion. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.) For a court to abuse its discretion in this context, its determination must be arbitrary, capricious, or patently absurd. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227-1228.) We reverse the lower court's termination order only if after reviewing all the evidence in the light most favorable to the trial court's decision, we conclude that no judge reasonably could have arrived at that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
Reunification services are voluntary and cannot be forced on an indifferent or unwilling parent, and it is not the Department's duty to ensure that a parent attends required classes or counseling sessions. (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) At the outset, Mother was disruptive in parenting classes and slow to re-enroll. She failed to take several drug tests when requested. She was often combative with the social workers and completely in denial about her problems.
On the record in this case, we find no indication that the Department failed to offer reasonable reunification services or that additional services were warranted. Mother was offered services for over 18 months, and the record does not demonstrate that additional reunification services would significantly change the situation. Although Mother was compliant with the case plan for short periods of time, she would revert to bizarre, inappropriate behavior with the children and social workers. Mother chose to move to Illinois, but problems arose upon her arrival. She became combative with maternal grandmother. Mother has shown no signs of emotional stability or of resolving her substance abuse problems. There is evidence that the children were in danger of physical harm when in her care. As a result, we conclude that the juvenile court did not abuse its discretion by terminating reunification services.
Turning to the related contention that the court should not have set a section 366.26 hearing, we note that it is the parent's burden to prove by clear and convincing evidence that setting such a hearing would not be in the child's best interest. (Sheri T. v. Superior Court (2008) 166 Cal.App.4th 334, 341.)
Here, the children have been detained for almost two years. Mother had difficulty with the social workers, and as a result, had trouble with monitored visitation. Soon after she was allowed unmonitored visits, she was arrested for narcotics possession. The children had been doing well in foster care, and then transitioned well to their maternal grandmother's home in Illinois, which was what Mother initially had requested. Mother has had difficulty dealing with maternal grandmother and the social workers in Illinois. Mother has made limited progress since the inception of the case and has not demonstrated that she is adequately prepared to care for the children. Maternal grandmother is now willing to adopt the boys and her home is suitable. Mother has failed to establish that the setting of a section 366.26 hearing is not in the children's best interest.
III. Ineffective Assistance of Counsel
A parent asserting a claim of ineffective assistance of counsel must show that counsel failed to act in a manner expected of reasonably competent attorneys practicing in the field of juvenile dependency. The parent must also establish that the claimed error was prejudicial, that is, that it is reasonably probable that a result more favorable to the appealing party would have been reached in absence of the error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1669.)
The record reveals that Mother was represented by one appointed attorney throughout the trial court proceedings. Mother alleges the following: 1) “I do not receive the proper information from my attorney to even gain a perspective”; 2) he “treats me as if he does not believe me. That I am retarded. He will not help transfer [the] case ․ to Illinois”; 3) he “will not submit evidence” in order to obtain unmonitored visitation rights; and 4) he “does not ask me enough questions!”
Mother's vague allegations do not establish that counsel's performance was lacking. Moreover, she cannot demonstrate that she was prejudiced by counsel's alleged shortcomings. It was Mother's failings that led to the court's order terminating reunification services. Her ineffective assistance claim is without merit.
DISPOSITION
The petition for an extraordinary writ is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
FOOTNOTES
FN1. All further statutory references are to the Welfare and Institutions Code.. FN1. All further statutory references are to the Welfare and Institutions Code.
EPSTEIN, P.J. WILLHITE, J.
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Docket No: B227707
Decided: December 15, 2010
Court: Court of Appeal, Second District, California.
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