L.G., Petitioner, v. MERCED COUNTY HUMAN SERVICES AGENCY (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner, in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's orders issued at a contested dispositional hearing on a supplemental petition (Welf. & Inst.Code, § 387) ¹ terminating reunification services and setting a section 366.26 hearing as to her three children.   We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In February 2010, petitioner was arrested for driving under the influence (DUI) of alcohol and a controlled substance and on a suspended license.   Her then 14 and 10–year–old daughters and 2–year–old son were at home with Phillip, the father of her son.   Phillip was also under the influence of a controlled substance.   The Merced County Human Services Agency (agency) took petitioner's three children into protective custody and placed them in foster care.   At the time, there was an order restraining Phillip from having any contact with petitioner and the children.

Petitioner has a criminal history dating back to 1993, which includes convictions in 1998 and 2009 for DUI, in 1998 for felony burglary, and in 2006 for driving with a suspended license.   She also has a history of hospitalizations for mental health problems.

In April 2010, at a combined jurisdictional/dispositional hearing, the juvenile court exercised its dependency jurisdiction after sustaining an original petition pursuant to section 300, subdivision (b) (failure to protect).   The court also ordered petitioner, Phillip, and Leonardo, the father of petitioner's daughters, to participate in reunification services.   Petitioner's reunification plan required her to participate in counseling for domestic violence and drug and alcohol dependence, complete a parenting education program, a drug and alcohol assessment, and submit to random drug testing.   The court also advised petitioner that since her son was under the age of three when removed from her custody, the court could terminate her services after six months if she failed to regularly participate in her court-ordered services.   The court set the six-month review hearing for October 2010.

The six-month review hearing was continued several times and conducted in November 2010.   Meanwhile, the children were placed in petitioner's custody on a trial visit.

In November 2010, at the six-month review hearing, the juvenile court found petitioner was provided reasonable services and ordered that the children remain in her custody under a plan of family maintenance.   The court also ordered petitioner to enforce the restraining order against Phillip, terminated reunification services for Phillip and Leonardo, and set a review of family maintenance services for May 2011.

In late December 2010, petitioner's oldest daughter told the social worker that she and her siblings were at their maternal grandmother's house because petitioner was arrested.   The younger of petitioner's daughters stated that petitioner had been drinking alcohol daily over the previous month.   Both girls stated that petitioner was allowing Phillip to visit the family home and that they preferred to live with their maternal grandmother.   The social worker verified that petitioner was arrested for driving on a suspended license and for prior warrants.

The agency took petitioner's three children into protective custody and placed them back in the same foster home.   The agency also filed a supplemental petition pursuant to section 387, alleging that family maintenance had proven ineffective in protecting the children.   The juvenile court found that parental placement was no longer appropriate and set a dispositional hearing on the supplemental petition.   In its report for the dispositional hearing, the agency recommended the juvenile court terminate reunification services, reasoning that petitioner had been provided 11 months of reunification services and would not be able to reunify with the children in the time remaining.

In February 2011, at the contested dispositional hearing on the supplemental petition, petitioner's attorney called social worker Rachelle Garcia to testify.   She testified that she visited petitioner at home and she did not see any alcohol or alcohol bottles there.   She said petitioner was not arrested for anything having to do with the children, but for driving on a suspended license and for old warrants.   She said the children were detained because petitioner was reportedly drinking on a daily basis.   She also said petitioner told her she quit taking her medication.   On cross-examination by county counsel, Ms. Garcia testified that petitioner did not complete any substance abuse treatment programs.

Petitioner testified she did not complete the parenting program because she was arrested and incarcerated.   She said she attended weekly dual diagnosis counseling, but after the children returned home, she only attended two sessions.   She was also supposed to go to the HOPES program and intended to start in January 2011.   Meanwhile, the children returned home and she wanted to be at home to help them transition;  then she was arrested in December 2010.   She was also supposed to participate in the home visitors program and she completed the paperwork.   She said she was never asked to drug test.   She said she was prescribed two medications, one for a mood disorder and the other for anxiety.   However, in order to get a refill on her anti-anxiety medication, she had to see the doctor and get her blood tested.   It took her a month to get an appointment with the doctor.   She went to her appointment the day before she was arrested.   Consequently, when she was arrested, she was only taking her mood stabilizer.

Petitioner further testified she was stopped for having her high beams on and for driving on a suspended license, but was arrested because of her prior warrants.   She said she expected to be released from custody in approximately three weeks.   At that point, her warrants would be cleared.   She denied drinking or having alcohol in the home subsequent to the children's return.   She admitted letting Phillip in the home, but said she believed Phillip was allowed to come to the house as long as their contact was peaceful.   She would comply if the agency told her they could not have contact.   She said she intended to complete the components of her case plan upon her release from custody and believed she could complete her services plan.

Following testimony, petitioner's attorney argued that petitioner was participating in her reunification plan and the juvenile court should continue services and allow her to reunite with her children.   Minors' counsel agreed, additionally pointing out that less than a year had passed since the children were detained in February 2010, that they wanted to reunify with petitioner, and that one of the children was very young.   County counsel argued petitioner's assurances that she would comply with her case plan requirements and the restraining order were not credible and urged the court to follow the agency's recommendations.

At the conclusion of the hearing, the juvenile court terminated petitioner's reunification services and set a section 366.26 hearing.   In making its rulings, the court stated it did not find petitioner credible and was not satisfied extending the time for reunification would produce any positive results.   This petition ensued.

DISCUSSION

Petitioner contends her attorney was inadequate, she was not given adequate time to prepare, her in-custody status limited her access to key witnesses and evidence, and she wanted to retain private counsel.   Distilled to its essence, she raises a claim of ineffective assistance of counsel.   We find no merit to her claim.

A petitioner asserting ineffectiveness of counsel must prove trial counsel's performance was deficient, resulting in prejudicial error.  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667–1668.)   We need not evaluate counsel's performance if petitioner fails to prove prejudicial error;  i.e., absent counsel's errors, there is a reasonable probability of a more favorable outcome.  (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)   Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that but for her attorney's presentation of her case, the juvenile court would have continued reunification services.

Section 361.5, subdivision (a) provides that the juvenile court will provide a minimum of six months of reunification services up to a maximum of 12 months in a case such as this involving a sibling group in which one of the siblings was under the age of three years when initially removed from parental custody. (§ 361.5, subd. (a)(1)(C).)  The six months start to run from the dispositional hearing.  (Ibid.) Further, when the juvenile court has provided an adequate reunification plan in the initial disposition on a section 300 petition, it is not duty-bound to order additional reunification services when the child is subsequently removed incident to a section 387 petition.  (In re Michael S. (1987) 188 Cal.App.3d 1448, 1459.)   Rather, “[f]ailure to order additional reunification services ․ is reversible error only if under the particular facts of the case the juvenile court judge abuses his or her discretion in failing to order such services.”  (Ibid.) “Key factors in this determination would be whether the services already offered were adequate, whether they addressed the concerns raised by the subsequent petition, and whether the objectives of the reunification planthe reunification of the familycould be achieved with the provision of additional services.  [Citation.]”  (In re Barbara P. (1994) 30 Cal.App.4th 926, 934.)

In this case, the juvenile court ordered a plan of reunification for petitioner in April 2010, and advised her that it could terminate her services after six months if she failed to regularly participate in her case plan requirements.   Seven months later, at the six-month review hearing in November, the court found she was provided reasonable services and continued her under a plan of family maintenance.   Approximately two months later, the children were removed again because petitioner was arrested and reportedly drinking alcohol.   At the dispositional hearing on the supplemental petition, petitioner admitted not regularly participating in her family maintenance plan.

Given the juvenile court's provision of in excess of six months of reasonable services, and petitioner's failure to regularly participate in them, we find no abuse of discretion in the court's order terminating her services.   Further, petitioner fails to show how more time or additional evidence or witnesses would have altered the outcome given the state of the evidence.   Consequently, she fails to show prejudice and her claim of ineffective assistance of counsel must fail.   Accordingly, we find no error on this record.

DISPOSITION

The petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.