Cecilia M. v. Superior Court

Filed 7/30/07 Cecilia M. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Cecilia M., in pro. per., for Petitioner.

No appearance for Respondent.

No appearance for Real Party In Interest.

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Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452 (rule)) from the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her son R. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Dependency proceedings were first initiated in Contra Costa County in August 2004 when the juvenile court exercised jurisdiction over then 15-month-old R. because of petitioners mental illness, substance abuse and abusive relationship with R.s father, R.W. who also suffers from a mental disorder. The court ordered R. to remain in petitioners custody under family maintenance and ordered family reunification services for R.W. but ordered R.W. not to have unauthorized or unsupervised contact with R.

In the summer of 2005, the case was transferred to Stanislaus County and, just days before the 12-month review of family maintenance services, the Stanislaus County Community Services Agency (agency) took R. into protective custody and filed a supplemental petition ( 387) alleging petitioner and R.W. were living together and engaging in domestic violence. The Stanislaus County juvenile court (juvenile court) sustained the supplemental petition and ordered reunification services for petitioner but terminated R.W.s reunification services. R. was placed in foster care.

Petitioner continued to receive reunification services and, in August 2006, the court returned R. to her custody under family maintenance services. In January and February 2007, petitioner tested positive for illicit drugs. Consequently, the agency took R. into protective custody and placed him with his previous foster family. The agency filed a supplemental petition and recommended the court deny petitioner any further reunification services and set a section 366.26 hearing to consider allowing his foster parents to adopt him. The court ordered R. detained pursuant to the petition and, on petitioners motion, set a contested dispositional hearing on the agencys recommendations. Prior to the dispositional hearing, petitioner filed a section 388 petition requesting the court place R. with her nephew.

On May 9, 2007, the court convened a combined contested dispositional hearing on the supplemental and section 388 petitions. R.s foster mother testified that she noticed a marked regression in R.s behavior after he was returned to her care in February 2007. He was uncharacteristically rebellious, stubborn and uncooperative, he no longer used eating utensils and his potty training had declined.

In her testimony, R.s therapist attested to R.s regressive state. She added that he also regressed in his speech and motor skills. She further testified R. was receiving good care in his foster home and, on the issue of placing R. with petitioners nephew, she opined it would be detrimental to place him in a new home, even that of a relative.

Petitioner testified and, under the questioning of her attorney, disputed R. displayed the regressive behaviors described by his foster mother. She testified he was not potty trained when placed in her care and, while he may have regressed somewhat, she attributed that to the change in placement. Further, she stated she was working with R. to achieve continence.

Following testimony, the court ordered R. removed from petitioners custody, denied any further reunification services and set a section 366.26 hearing to consider a permanent plan of adoption. The court stated it would consider the therapists testimony in ruling on the section 388 petition but deferred ruling on it. Instead, the court set a continued hearing on the section 388 petition to June 1, 2007, to allow petitioners attorney to present further evidence.

Petitioner filed a timely notice of intent to file a writ petition from the May 9, 2007, hearing. She also filed a notice of appeal from the juvenile courts order issued on June 1, 2007, denying her section 388 petition. Her appeal is currently pending before this court (F053129).

DISCUSSION

Petitioner argues it would be in R.s best interest to be adopted by her nephew and her attorneys failure to offer evidence supporting such a determination was ineffective. We disagree trial counsel was ineffective.

A petitioner asserting ineffectiveness of counsel in juvenile dependency proceedings must prove both deficient performance based on an objective reasonable standard and prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Counsels performance is deficient if it fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] (People v. Ledesma (1987) 43 Cal.3d 171, 216.) Moreover, appellant has suffered prejudice if, absent counsels errors, there is a reasonable probability of a more favorable outcome. (Id. at p. 218.)

The issue at disposition on a supplemental petition is whether the previous disposition, in this case parental custody, was effective in protecting the child. ( 387, subd. (b).) The standard for removal on a supplemental petition is the same as removal on an original petition: the agency must show by clear and convincing evidence ... [t]here is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if left in parental custody and there are no reasonable means by which the minors physical health can be protected without removing the minor from [parental] physical custody. [Citations.] (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1077 (Kimberly R.).)

In this case, petitioner fails to show and the appellate record does not support a conclusion trial counsels performance was deficient. Trial counsel challenged the agencys contention R. regressed in petitioners care by cross-examining its witnesses. Counsel also carefully examined petitioner, allowing her to refute each fact used to support the agencys claim. On such evidence, we conclude trial counsel was not deficient.

Having failed to establish deficient performance, petitioners claim of ineffective assistance necessarily fails. But even if counsel had been deficient, petitioners claim would fail for lack of prejudicial effect because substantial evidence supports the courts dispositional order removing R. from petitioners custody. (Kimberly R., supra, 96 Cal.App.4th at p. 1078.) The court found the foster mothers testimony persuasive with respect to R.s transformation from a cooperative child to a stubborn, uncooperative and deliberately disobedient child. From that, the court concluded R. was suffering emotionally. In addition, R.s therapist confirmed R. dramatically regressed during his time with petitioner in the ways described by his foster mother as well as in the areas of speech and motor skills. Finally, based on petitioners two positive drug tests, it is reasonable to infer that she had relapsed. Given the weight of evidence favoring R.s removal, we cannot imagine what more trial counsel could have done to achieve a favorable result. Consequently, we reject petitioners claim of ineffective assistance.

Further, because the court could not return R. to petitioner's custody, it had no choice but to set a hearing under section 366.26. Petitioner received a combined total of 34 months of family reunification and family maintenance services. Consequently, she was not entitled to any additional time. (Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 167.)

Finally, we will not address any argument petitioner may be attempting to raise by her writ petition that trial counsel was ineffective in arguing the section 388 petition or that the juvenile court erred in denying it. Review by writ petition is limited to those orders issued by the juvenile court at the hearing setting the section 366.26 hearing (see  366.26, subd. (l); rule 8.450.) The courts order denying the section 388 petition was issued at a subsequent hearing, rendering it directly appealable ( 395; rule 8.400.) We will therefore defer our decision with respect to that order when we review the appeal on its merits. As to this matter, however, we find no error.

DISPOSITION

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

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.