LYNN v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In her petition for extraordinary writ, Lynn L. (Mother) challenges a March 30, 2011 order setting a permanent planning hearing for July 27, 2011 regarding her children Ann Marie S. and Joseph S. We deny the petition because substantial evidence supports the juvenile court's finding that Mother was properly denied reunification services.

BACKGROUND

Ann Marie S. is two years old.   Joseph S. is eight months old.

Mother's first contact with child welfare authorities occurred in 2002 in Orange County, when her child, Helen, then three years old, was found wandering alone on a sidewalk.¹  Around 2004, Mother gave birth to a baby boy, Julian S. Helen and Julian came to the attention of the Orange County Social Services Agency in December 2007.

The Court of Appeal further found that “Julian's statements provided disturbing evidence that mother was complicit in, or at a minimum, knew about, the physical abuse.   He stated that ‘Mama holds me and Joe beats me,’ and that ‘Joe punched me hard in my chest and spanks me really hard.   My mama was there where he hurts me.’   When asked what his mother does, Julian stated, ‘She whines.’   During another interview, Julian stated that his mother was crying because Joe spanked him.   He also reported that his mother was there when he was hurt.   He demonstrated Joe's punches on a teddy bear as closed-fisted punches to the stomach.   These statements support the conclusion that the mother was present, and her actions of crying and whining demonstrate her awareness of the seriousness of the abuse.

“There was other evidence from which the court could find the mother either knew or should have known of the abuse.   Julian's doctor found bite marks all over his body, in different stages of healing.   Some of these marks were in places, such as under his armpit and on his buttocks, that belie any claim of children's playground activity.   Julian had bruises of various ages on his body and had suffered a broken rib, consistent with a punch to the stomach, approximately one month before detention.   These marks and injuries were or should have been obvious to any reasonable caretaker and were too extensive to support accidental injury.”  (In re Julian S., supra, G04050, 10.)

The Court of Appeal affirmed the juvenile court's order to deny Mother reunification services.   Mother's parental rights as to Julian were terminated on June 5, 2008, and his adoption was finalized on April 19, 2010.

The family again came to the attention of the Los Angeles Department of Children and Family Services (DCFS) on October 9, 2010, when a DCFS social worker responded to a referral from the hospital where Joseph was born because Mother tested positive for barbiturates at the time of Joseph's birth.   Father, Joe S., had been convicted and sentenced to six years in state prison for child cruelty, as to Julian.   DCFS detained Joseph.   DCFS was unable to detain Ann Marie because Mother said she did not know the whereabouts of her daughter.   Mother said that Ann Marie was adopted and living with relatives.   Actually, Ann Marie was living with a cousin in Garden Grove.   The minor was subsequently detained by DCFS.

On October 14, 2010, DCFS filed a Welfare and Institutions Code 2 section 300 petition, as to Ann Marie and Joseph, and alleged under subdivisions (a), (b), and (j) that there had been severe physical abuse to a half sibling by Father, and Mother had failed to take action to protect the half sibling.   Furthermore, Mother has a history of substance abuse and is a current user of barbiturates.

On October 15, 2010, the juvenile court ordered Ann Marie and Joseph detained and placed in shelter care.   Pending disposition, Mother was offered reunification services, to wit, weekly random drug testing, drug counseling, parenting classes, and individualized counseling.

At the pretrial conference hearing on December 2, 2010, DCFS filed a first amended section 300 petition.   The amended petition alleged that Joe S., the father of Ann Marie S. and Joseph S., had been convicted on March 9, 2010 of felony child abuse with an enhancement under Penal Code section 12022.7 for willfully inflicting great bodily injury including but not limited to multiple bruises and a skull fracture to the half sibling Julian S. DCFS further reported that Mother was having monitored visits with the children.

The matter was set for an adjudication/disposition trial setting on January 21, 2011.   On January 21, 2011, attorney Brian Baron substituted in as counsel for Mother.   Attorney Baron asked for a continuance of the February 2, 2011 hearing, saying he had not received Mother's file from her former counsel.   The juvenile court denied the request.

On January 24, 2011, DCFS filed a request that the juvenile court take judicial notice of Mother's prior case in Orange County.   On January 26, 2011, attorney Baron filed a motion, against asking for a continuance, indicating he still did not have Mother's file.   DCFS pointed out that attorney Baron did have copies of DCFS's report.   After a discussion off the record, attorney Baron acknowledged that he had everything.   The juvenile court granted the request for judicial notice and granted attorney Baron a continuance to February 9, 2011.

On February 2, 2011, DCFS filed a motion for collateral estoppel as to the facts involved in Mother's prior Orange County case.

On February 9, 2011, DCFS reported that Mother had completed a parenting skills course, but DCFS did not feel Mother was exhibiting signs of appropriate parenting.   For instance, she did not appear to know how to change a diaper and failed to use good hygiene when caring for the children.   In addition, Mother had tested positive for amphetamine/methamphetamine on November 15, 2010.   Furthermore, Mother enrolled in a six-month outpatient drug treatment program and attended “some” of the sessions.

On February 9, 2011, the court continued the section 300 hearing to March 29, 2011 because Father had not been brought to court from prison.   Attorney Baron informed the juvenile court that Mother would not be contesting adjudication, only disposition.

On March 29, 2011, the next date set for trial, DCFS reported that Mother continued to have little or no skill in caring for her children at visits.   DCFS also expressed concern that even knowing about Joe S.'s abuse of Julian, Mother stayed in a relationship with him, and had two children with him.   However, DCFS acknowledged that Mother was visiting the children on a consistent basis and was participating in counseling.   DCFS recommended that Mother not be provided reunification services pursuant to section 361.5, subdivision (b).

At the trial, attorney Baron submitted on the issue of jurisdiction and challenged DCFS's recommendation of no reunification services.   The juvenile court took judicial notice of the prior Orange County court file and granted DCFS's request for collateral estoppels as to the facts of the Orange County case.   DCFS put its reports and other exhibits into evidence.

Mother testified on her own behalf for dispositional purposes, and asked the juvenile court to provide her reunification services.   She stated that she has had parental rights terminated as to one child, but has been participating in individual therapy and in drug counseling and testing.   She had participated in four classes of anger management and four classes of a domestic violence program.   She was employed part-time.

Mother further testified that the father of the minors is in state prison and she would not let him be around the children unsupervised.   She acknowledged that he had been found guilty of a crime having to do with children and then further stated:  “He did it.”  “I don't know what happened.”  “I think he may have.”  “He did it.”   She was not sure what happened in Orange County.   She learned that she needed to focus on the children and said that she does not have a drug problem.

Mother further testified she has the skills to protect the children from Father.   After the Orange County case, she continued to have contact with Father and had two more children with him.   She continued to have relations with Father because at that time she did not believe he had hurt Julian, because she did not see it.   However, after his conviction, she changed her mind because the court had found him guilty.   She further testified she does not pose a danger to Ann Marie or Joseph and that she has parenting skills.

Alicia Mena, a social worker, testified that she recommended that Mother not be provided reunification services partially based on what happened to Julian and inlight of Mother's mental state.   In interviewing her, she discovered Mother was nonprotective and still did not believe abuse had occurred.   After her parental rights to Julian were terminated, Mother continued to see Father.   Subsequently, she gave birth to two children fathered by the abuser.

The juvenile court ordered no reunification services for Mother pursuant to section 361.5, subdivision (b)(6), (7), (11).   The court set a section 366.26 hearing for July 27, 2011.

Mother's notice of intent to file a writ petition was filed with the superior court;  the notice of intent was signed by Mother and dated April 7, 2011.   Mother filed the petition in propria persona on May 13, 2011.   Mother's petition alleged that it is in her children's best interest for her to be provided reunification services and retain her parental rights.   On May 13, 2011, the clerk of this court informed the parties that the matter will be decided on the merits.   DCFS filed an answer to the petition for an extraordinary writ.   Mother filed objections to the answer.

DISCUSSION

Denial of Reunification Services for Mother

Generally when the juvenile court institutes dependency proceedings and removes children from the care of their parents, services are ordered to address the conditions leading to the removal of the children and to facilitate reunification of the family.  (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474;  Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)   But the Legislature has recognized ‘ “that it may be fruitless to provide reunification services under certain circumstances'․”  (Raymond C., at p. 163, quoting Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)   Thus the Legislature has adopted several provisions, which authorize the denial of family reunification services.  (See § 361.5, subds. (b), (c) & (e).) ³  These provisions demonstrate the legislative determination that, in certain situations, reunification efforts neither serve nor protect the child's best interest.  (In re Baby H., supra, 63 Cal.App.4th at p. 474.)

Here, the juvenile court denied services based on the severe abuse of Julian, Ann Marie and Joseph's half sibling, and Mother's failure to protect the child or acknowledge that Father was the abuser.

The appellate court reviews an order denying reunification services under section 361.5, subdivision (b), for substantial evidence.  (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)

In this case, the juvenile court's decision was supported by substantial evidence;  Mother has not shown otherwise.   Although Mother had attended some programs by the time of the disposition hearing, she continued to refuse to accept responsibility for not protecting Julian.   Mother still argues that faulty evidence caused a sustained petition in Julian's case.   In her writ petition, Mother alleges that exculpatory evidence was not collected or prepared by the first attorney in the Orange County case.   Among other things, she requested an impression of Joe S.'s teeth to determine whether the bite marks on Julian's buttocks were actually caused by anyone who resided in the household, and an accurate hair follicle test on Mother to determine if she used barbiturates.   We reject her contention.   She inappropriately asks this court to reweigh, not just the evidence in the current case, but the evidence in the Orange County case, which the juvenile court correctly recognized under the doctrine of collateral estoppel, especially since it had been affirmed by the appellate court.

The juvenile court reasoned that it was not possible to find it would be in the children's best interest to give Mother reunification services where there was every chance that she would let Father back in her life, due to her apparent disbelief about his guilt.   Moreover, Mother tested positive for methamphetamine on November 15, 2010, more than a month after the children were detained and despite the fact that she had started drug counseling almost a month earlier, on October 25, 2010.

Services should be provided only where they “ ‘will facilitate the return of children to parental custody’ ” and that is unlikely in the present case.   (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749 fn. 6.) Therefore, the decision of the juvenile court was reasonable and correct.

Mother's Attorney

Mother claims her attorney did not receive her case file in a timely manner so as to adequately prepare for trial.   Yet, she also admits he had the file as of January 25, 2011, more than two months before her March 29 hearing.   Mother gives no reason why this might not have been enough time.   Moreover, in the juvenile court, Mother's attorney agreed to the ultimate trial date, March 29, 2011, and, in fact, agreed previously to a much earlier date as being “fair.”

Orange County Case

Mother seemingly asks this court to relitigate her case from Orange County.   She even says she will produce additional evidence in the future that will inure to her benefit in reference to that case.   However, the petition was sustained in the juvenile court in Orange County, and was affirmed on appeal by the Fourth District.   Therefore, any argument regarding producing evidence as to the facts of that case is improperly before this court.

Ineffective Assistance of Counsel

“To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.”  (Strickland v. Washington (1984) 466 U.S. 668, 687;  In re Jones (1996) 13 Cal.4th 552, 561;  In re Wilson (1992) 3 Cal.4th 945, 950.)

In evaluating petitioner's claim of deficient performance by counsel, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance” (Strickland v. Washington, supra, 466 U.S. at p. 689;  In re Jones, supra, 13 Cal.4th at p. 561), and a great deference is accorded to counsel's tactical decisions.  (In re Fields (1990) 51 Cal.3d 1063, 1069–1070.)  “Otherwise, appellate courts would become engaged ‘in the perilous process of second-guessing.’ ”  (People v. Pope (1979) 23 Cal.3d 412, 426.)

Mother claims her counsel rendered ineffective assistance.   The allegation is either made as to her first attorney or attorney Baron, or both, it is not clear.   Regardless, the claim is without merit.

Under section 317.5, a party represented by counsel in a dependency proceeding is entitled to “competent counsel,” and may therefore raise a claim that counsel was ineffective.  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667.)   A parent who claims that section 317.5 was violated, however, must show “counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law․”  (Id. at pp.   1667–1668.)

In the present case, Mother's attorney zealously represented her interests.   Given that Mother was barred by collateral estoppel from relitigating the Orange County case, Mother's attorney made the only argument available to him—that it would be in the children's best interest for Mother to receive reunification services.

Mother has the burden to show her attorney was ineffective.  (People v. Pope, supra, 23 Cal.3d at p. 435.)   She claims her Orange County attorney should have sought additional evidence.   However, as previously explained, the Orange County case was not susceptible to relitigation.   Thus, Mother has failed to indicate what else, if anything, her attorney could have done.

Meanwhile, even assuming arguendo Mother's attorney failed her in some way, she cannot prevail in her claim unless she can show that, in the absence of the attorney's failings, a more favorable result was reasonably possible.   (Strickland v. Washington, supra, 466 U.S. at p. 687;  In re Jones, supra, 13 Cal.4th at p. 561;  In re Wilson, supra, 3 Cal.4th at p. 950.)   Here, the abuse perpetrated on Julian in the Orange County case and Mother's failure to take any responsibility for her complicity and/or negligence in the abuse cannot be overcome.   This is especially true because Mother still claims she had no culpability.   Therefore, based on the evidence in the case, we conclude that no more favorable result was reasonably possible.

DISPOSITION

The petition for extraordinary writ is denied.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. On June 4, 2008, the juvenile court granted custody of Helen to her father Christopher Sanchez and dependency was terminated with exit orders..  FN1. On June 4, 2008, the juvenile court granted custody of Helen to her father Christopher Sanchez and dependency was terminated with exit orders.

FN2. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN2. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

FN3. Section 31.5, provides in relevant part:“(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶]“(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. [¶] ․ [¶]“A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body of the body of a sibling or half sibling of the child by an act or omission of the parent or guardian․“(7) That the parent is not receiving reunification services for a sibling or half sibling of the child pursuant to paragraph (3), (5), or (6)[¶] ․ [¶]“(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling of that child from the parent. [¶] ․ [¶]“(15) [¶] ․ [¶]“(c) In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing․“The court shall not offer reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (5) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”.  FN3. Section 31.5, provides in relevant part:“(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:  [¶] ․ [¶]“(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian. [¶] ․ [¶]“A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body of the body of a sibling or half sibling of the child by an act or omission of the parent or guardian․“(7) That the parent is not receiving reunification services for a sibling or half sibling of the child pursuant to paragraph (3), (5), or (6)[¶] ․ [¶]“(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling of that child from the parent. [¶] ․ [¶]“(15) [¶] ․ [¶]“(c) In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing․“The court shall not offer reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (5) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.”

ROTHSCHILD, Acting P. J. CHANEY, J.