In re J.J.
Filed 6/5/13 In
re J.J. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re J.
J., et al., Persons Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN &
FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
CHRISTINA
V.,
Defendant and Appellant.
A135836, A136450
(Contra Costa County
Super. Ct. Nos. J11-00563, J11-00564,
J11-00565)
In re CHRISTINA V.,
on Habeas Corpus.
A137988
In
these dependency cases, Christina V. (Mother) appeals from an order denying her
petition pursuant to Welfare and Institutions Code section 388
for continued reunification services
(A135836), and she appeals (A136450) and petitions for a writ of habeas corpus
(A137988) following denial of another section 388 petition seeking to extend
her reunification services, and entry of orders terminating her parental rights
to her sons J.J. and C.V., and her daughter J.V. We have granted Mother’s requests to
consolidate her appeals and to consolidate the habeas petition for
consideration with them, and we hereby grant her request to take judicial
notice of the records in the appeals in the habeas corpus case.
In
her appeals, Mother contends that the court erred when it denied her
section 388 petitions without evidentiary
hearings, and that her parental rights should not have been terminated
because continuing the parent child relationship was in her children’s best
interests. (§ 366.26, subd.
(c)(1)(B)(i)). In her habeas petition,
she argues that the order terminating her parental rights must be reversed due
to ineffective assistance of counsel. The issues are well argued on Mother’s behalf
but do not raise close questions for reversal.
We affirm the orders denying the section 388 petitions and terminating
parental rights, and we deny the petition for habeas corpus.
APPEAL NOS. A135836, A136450
A. Background
Mother
gave birth to J.J., her oldest child, when she was 17. J.J. was seven, J.V. was four, and C.V. was
two when these dependency proceedings
were instituted in April 2011. The
petitions alleged that the children were at risk of harm due to Mother’s anger
management problem. (§ 300, subd.
(b).) She admitted the allegation, and
the children were adjudged dependents.
According
to the Bureau’s jurisdictional and dispositional reports, the children’s
maternal great grandmother and a maternal great aunt were granted temporary
guardianship of them in January 2010, and Mother reported that the children had
been living with the great grandparents since the previous September.
grandparents had raised Mother’s children on and off since birth due to
Mother’s instability.
The
great aunt said that family members feared Mother’s unpredictable rages. The incident that precipitated these
dependency proceedings occurred on March 3, 2011, when Mother threatened the
great grandmother with a knife in the presence of the children, and threw
barstools around the great grandparents’ house.
Mother was on probation at the time following an incident in 2008 when
she tried to run a man over while driving with her children in the car. In another 2008 incident, she repeatedly
rammed her car into the car of a relative, who declined to press charges.
Mother
denied “current and historical drug and alcohol use,†but had been arrested in
August 2009 for disorderly conduct and public intoxication after she tried to
start a fight at a party. Mother claimed
to have a bachelor’s degree in psychology, but she had only a part time low
wage job at McDonalds, and her family reported that she did not complete high
school.
The
great aunt said that Mother had not sought mental health treatment because
“there is nothing wrong with her . . . there is something wrong with
everyone else.†Mother’s probation
officer reported that she “struggles with accepting or recognizing her negative
behaviors,†and “has a pattern of placing the blame on others.†The social worker recommended that Mother
obtain a psychological
evaluation, and advised her to call “Mental Health access for mental health
referrals.†Mother’s case plan required
her to “complete a Mental Health Assessment arranged through Contra Costa
County Mental Health or other Mental Health provider approved by the social
worker; to sign necessary releases of information regarding previous Mental
Health treatment; and to follow all recommendations resulting from that assessment.â€
The
children were placed together in foster care at a confidential location, and
Mother was granted one hour of supervised visitation with them twice a
month.
Mother
in pro. per. filed section 388 petitions seeking increased visitation with each
of the children. The petitions were
summarily denied on the ground that requisite notice had not been given.
The
Bureau’s report for the October 31 six-month review hearing stated that Mother
had visited consistently with the children, but it was “unclear if [she] has
addressed her mental health and anger problems.
During this review period, [she] has demonstrated her ability to anger
quickly and on two occasions was asked to leave the interview room because her
anger was escalating.†She had “yell[ed]â€
and “cuss[ed]†at the social worker and a Bureau receptionist.
The
Bureau’s report also said Mother claimed to have obtained a psychological
evaluation as required by the case plan, but she provided no confirming
documentation. The social worker could
not substantiate Mother’s claim that she was seeing a therapist. It was “imperative that [she] provide the
Bureau with documentation from her mental health therapist and a current
psychological evaluation prior to the children beginning unsupervised visits.†The Bureau had “not received verification
that . . . she has followed the recommendation from St. Helena
Hospital following her discharge in April 2011 . . . that [she]
follow up with Contra Costa Mental Health.
She was prescribed Depakote, which is prescribed to address symptoms of
bi-polar, epilepsy and migraines. She
was also prescribed Risperdal and Cogentin.
Risperdal is an antipsychotic drug.â€
Mother stated both that she was taking medication prescribed by a
psychiatrist, and that she had never taken any such medication.
At
the October 31 hearing, the court said that it was not inclined to follow the
Bureau’s recommendation that Mother be provided an additional six months of
services, because it “[did not] understand what progress has been made.†The Bureau said that Mother had not completed
a mental health assessment, and such an assessment could not be made if there
were “drug issues.†Mother said that she
had given the requisite documentation to the social worker. The court said that it would continue the
hearing for four weeks if Mother would submit to a drug test and the test was
negative. Mother agreed to the test, the
result was negative, and the matter was continued with the understanding that
the Bureau would file a supplemental report before the next hearing on December
2.
On
November 14, Mother filed a declaration attaching documents related to her case
plan. One of the documents showed her
enrolled in parenting classes at Merritt College as of November 3. A September
progress report from a marriage and family therapist at the Touchstone child
abuse treatment program stated that Mother had attended 22 sessions since
enrolling on January 11. A progress
report from the Anger Management Institute stated that she had attended 10 of
the 52 sessions ordered. A November
letter from a program coordinator at Bay Area Women Against Rape stated that
Mother had 12 weekly personal counseling sessions with him from July 1 to
September 16, and that her attendance was “impeccable.†Since then, she had called him every other
week to discuss “what has come up for her.â€
During the counseling sessions, they had discussed “her prior drug and
alcohol usage and how in the past she drank to stuff the feelings that came
about as a result of her sexual
abuse.†Mother attached an August notice
from the Social Security Administration denying her claim for SSI payments
based on her professed depression and bi-polar and anxiety disorders. The notice stated that the decision was made
based on reports from MDSI Physician Group, St. Helena Hospital, and CO/M
Contra Costa Pittsburg. In handwritten
notes, Mother described the Social Security notice as a “psychological
evaluation,†and stated that she had an appointment for another mental health
evaluation on November 15.
The
Bureau submitted a November 28 memorandum that acknowledged receipt of most of
the foregoing documents, but clarified that Mother had not provided
verification that she was meeting with a psychiatrist or had scheduled a
psychological evaluation. Mother’s
supervised visitation with the children continued. The visits sometimes appeared stressful for
her, and she had made a couple of inappropriate comments to the children. She usually brought candy and soda to the
interviews, which “contribut[ed] to [the children’s] excitement,†and had been
asked to refrain from doing so.
In
January 2012, Mother in pro. per. filed section 388 petitions asking that the
children be placed with her mother. The
petitions were summarily denied on the grounds that they presented no new
evidence and requested a change that would not be in the children’s best
interests.
After
several continuances, the 12-month review was scheduled for February 27,
2012. On February 15, the court filed an
“unreported minute order†changing the date of the review from February 27 to
February 22. The proof of service for
the order showed that it was sent to Mother’s counsel, but not to Mother.
The
Bureau’s February 17 memorandum for the 12-month review recommended termination
of reunification services and setting a section 366.26 (§ .26) hearing
“due to [Mother’s] limited participation in meeting her Case Plan
responsibilities.†Mother had not
obtained a psychological evaluation, but said that she had one scheduled in
May. Family members said they had tried
to help Mother get counseling for her violent behavior, but “she has not been
receptive.†The memorandum stated: “The requirement for a psychological
evaluation is a major component [of Mother’s] Court-ordered Case Plan. The Bureau is aware that [Mother] has
attended anger management classes in the past but is unable to benefit from the
courses. [Mother] is an intelligent,
young woman and according to the counselor at the Anger Management Institute,
she was a good student. There is concern
that [Mother’s] inability to react differently to anger could be organic [and]
without further testing there is no way to know.â€
The
memorandum reported that Mother had submitted a certificate of completion of an
anger management program, but the program was in Texas in 2007. Mother told the social worker that she wanted
to give up her parental rights and have the children placed with their
grandmother, but the grandmother said that she was unable to care for the
children, and sent a letter “expressing her concerns regarding [Mother’s]
ability to care for her children’s well-being.â€
Mother reported that she had moved to Houston and wanted the dependency
cases transferred to Texas.
The
12-month review was continued from February 22 to March 19. Mother did not appear at the March 19
hearing. Mother’s counsel said that
Mother had moved to Texas because she could not afford to live in California,
and that Mother objected to termination of services, but there was no evidence
to present on her behalf. Counsel for
the Bureau said that Mother had not visited the children since her move, and
the Bureau did not have her current address.
The court terminated services and set a .26 hearing for July 10.
On
June 13 and June 29, Mother filed section 388 petitions, detailed below,
listing a local address in Pittsburgh and requesting further
ground that the proposed change would not be in the children’s best
interests. Mother appealed from the
order denying her June 13 petition in appeal No. A135836.
The
Bureau’s report for the .26 hearing stated that the children remained placed
together with a maternal aunt and uncle, who planned to adopt them. Mother knew the identity, but not the
location, of the prospective parents.
The children “display[ed] a secure attachment†to them, and the Bureau
believed that the children were adoptable.
The oldest child, J.J., was less “animated and active†than his siblings
and could likely benefit from further psychotherapy, and C.V., the other son,
had previously qualified for speech services, but the children were all
physically healthy and “developmentally on target.†The report recommended termination of
Mother’s parental rights, and permanent plans of adoption.
J.J.
was “clearly more severely affected†by Mother’s behavior than his
siblings. J.J. “does not speak of her
throughout the month, he does not seek her affection during visitation, and he
often presents as guarded and withdrawn in her presence.†C.V., “being only 3 years old and having
lived half his life outside the care of [Mother], seems more interested in the
playroom toys during visitation than in interacting with [Mother]—unless she
directly engages him in play.†Mother
“interact[ed] more intimately and affectionately†with her daughter, J.V., than
with her sons during visits. J.V. was
the only child to ask Mother about the possibility of living with her
again. The Bureau “acknowledge[d] that
there is a relationship between [Mother] and [J.V.]; however, [J.V.] is an
impressionable girl of 5 years old who gets her nails painted and new clothes
every time [Mother] visits.†While the
Bureau found it “difficult to measure the quality of [Mother’s] existing
relationship [with the children] given the extensive history of inconsistent
and hazardous parenting,†it believed that “the benefits of adoption, safety,
security, and consistent nurturing for the children far outweigh[ed] the level
of relationship that the children and [Mother] currently share.â€
The
Bureau observed that when reunification services were terminated in March,
Mother “was barely engaged in case plan requirements, nor had she addressed the
most pressing concern regarding her stability—the requirement for a
psychological evaluation and possible follow-up care. [Mother] has stated many times that she had
an appointment for psychological testing/evaluation; however, she had never
produced a report or documentation to prove that she is participating in or has
completed this requirement. Given the
history of her reported behaviors of bizarre tendencies and multiple police
reports regarding violent episodes, it has been suspected that [Mother’s]
challenges may have an organic base.â€
Mother’s denials of drug and alcohol use were called into question not
only because of her 2009 arrest for public intoxication, but also due to a
positive test for marijuana in April 2011, after the dependency proceeding were
instituted, at the Center for Behavioral Health in St. Helena when she was
placed on a section 5150 hold. The
Bureau “continue[d] to have grave concerns about her ability to provide safe
and stable parenting for the children.â€
Mother
did not appear at the .26 hearing on July 10.
One of J.J.’s alleged fathers, F.R., appeared for the first time in the
case, and the hearing was continued to August 22. Mother appeared, but F.R. did not, at the
August 22 hearing.
Mother
testified that the children had been with her since birth, that they wanted to
be with her, and that termination of her parental rights would not be in their
best interests. On cross-examination,
she acknowledged that guardianships for the children had been established
before the dependency proceedings were instituted, but she said the
guardianships were based on false allegations about what occurred at her house.
Mother
said that she had obtained three psychological evaluations, and that she had a
report from Social Security in her backpack.
She produced the August 2011 notice denying her Social Security
benefits, which she had lodged with the court along with her November 14
declaration. She said she had just
completed another psychological evaluation with the Pittsburg Health Clinic,
and produced a slip for an August 20 appointment with Dr. Khan at East Contra
Costa County Adult Mental Health Service in Pittsburg. She said that she could not get a copy of the
recent report because it had to be requested by the County or a doctor, and she
needed “a special paper†to obtain it for the court. She said that she had been seen in April by
Dr. Khan, who told her that, in order to get a copy of the evaluation report,
the County would need to submit paperwork and she would need to sign an
authorization form.
In
arguing for termination of Mother’s parental rights, the Bureau emphasized her
failure to obtain a psychological evaluation.
Bureau counsel argued: “[I]t’s
never been produced because, in fact, it’s never happened. [¶] . . . [¶] If in fact
an evaluation exists, her attorney could have subpoenaed
it. . . . [¶] . . . [¶] . . . That
was really the key part of her plan, and the key issue that might have made it
possible for at some point to get the treatment that she needed and possibly
unify with her children, but it just hasn’t happened.†Mother’s counsel argued that the children
would benefit from a continued parental relationship with Mother. Counsel for the Bureau and the children
disagreed. Bureau counsel submitted that
the parent-child relationships in this case were not “the type of relationship
a mother would have to have for the Court not to terminate parental
rights.†The children’s counsel “d[i]d
not believe that there is a sufficient parent/child relationship here that
should outweigh what is in the best interests of these three children, and that
is permanence and stability.â€
The
court found that terminating Mother’s parental rights was “clearly in the best
interest of the children.†The court
stated that when the .26 hearing was set, the “pivotal issue was whether or not
mother had obtained the psychological evaluation as required by her case
plan.†If Mother had obtained such an
evaluation, her counsel “would have subpoenaed those records and ensured the
production of a report that would have been demonstrative of a significant part
of the case plan.
[¶] . . . [T]he Court has concluded that [Mother] was not
being forthcoming with the Court, either that or, at worse, [she] is laboring
under some kind of mental issue that the Court is unable and not qualified to
identify, in the sense that she is imagining things that have in fact occurred
when the evidence is to the contrary.â€
Mother
appealed from the order terminating parental rights in appeal No. A136450.
B. Discussion
(1) Summary
Denials of the Section 388 Petitions
Mother
contends that the court should have held evidentiary hearings on her June 2012
section 388 petitions. A parent who
seeks to modify a previous order pursuant to section 388 must “ ‘make a
prima facie showing to trigger the right to proceed by way of a full
hearing. [Citations.]’ [Citations.]
There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine
change of circumstances or new evidence, and that (2) revoking the previous
order would be in the best interests of the children. [Citation.]
If the liberally construed allegations of the petition do not show
changed circumstances such that the child’s best interests will be promoted by
the proposed change of order, the dependency court need not order a
hearing. [Citation.] We review the juvenile court’s summary denial
of a section 388 petition for abuse of discretion.†(In re
Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)
(a) June 13 Petitions
Mother’s
June 13 petitions sought to modify the orders of March 19, which terminated
reunification services and set the .26 hearing.
The petitions requested further reunification services, and were signed
by Mother rather than her counsel, but counsel apparently participated in their
preparation because the changed circumstances state: “My client was not aware of the court date
and has completed all the services that were recommended by [the] social
services agency for the reunification of her children before March of
2012.†These allegations were too
conclusory to warrant a hearing. (See
specific allegations are required]; id.
at p. 251 [parent claimed to have completed reunification program but submitted
no supporting evidence].) Mother made no
attempt to explain or excuse her ignorance of the hearing date and, like the
parent in Anthony W., filed no
documents evidencing fulfillment of her case plan. Mother also failed to make a prima facie
showing that continued efforts at reunification would be in the children’s best
interests. The petitions simply stated,
“[t]he child belongs with their mother.â€
The court did not abuse its discretion when it declined to hold a
hearing on the June 13 petitions.
(b) June 29 Petitions
The
court also acted reasonably when it denied a hearing on Mother’s June 29
petitions for additional services.
name="_ftnref3" title="">[3] These petitions, signed by Mother’s
attorney, claimed changed circumstances because: “Client has completed her case plan and the
psychological evaluation required by the department. Client has maintained contact with department
and her children. Client continues to
maintain a stable home environment.†The
petitions asserted additional services would be in the children’s interest
because: “The children have a strong
bond with their mother. The children
would continue to have contact with their birth family and each other. The children have been cared for solely by
Mother prior to a petition being filed by CFS.â€
The
petitions did not establish a prima facie case of either changed circumstances
or the children’s best interests. They
alleged that Mother had completed her case plan and obtained the requisite
psychological evaluation, but were not supported with any proof. The petitions stated that Mother and the
children had a “strong bond,†without elaboration. Moreover, the petitions included false
statements. Mother claimed that she had
maintained contact with the Bureau, but the court learned at the March 19
hearing that she had moved to Texas and the Bureau did not have her current
address. Mother claimed that she was the
children’s sole caretaker before the dependency petitions were filed, but she
told the social worker at the outset of the proceedings that the children had
been living with their great grandparents for the last seven months. The court was well within its discretion in
declining to hold a hearing on the June 29 petitions.
(2) Termination
of Parental Rights
Mother
argues the court should have found that her parental relationship with the
children was sufficiently beneficial to overcome the preference for a permanent
plan of adoption. (§ 366.26, subd.
(c)(1)(B)(i); In re Casey D. (1999)
70 Cal.App.4th 38, 50 [adoption is the preferred plan if the child is
adoptable].) Regular visitation with the
children is a prerequisite to the application of this beneficial relationship
exception. (§ 366.26, subd.
(c)(1)(B)(i); In re Zeth S. (2003) 31
Cal.4th 396, 412, fn. 9.) Mother claims
it cannot be disputed that she satisfied this requirement because the .26
report stated that she visited with the children on a regular basis throughout
the dependencies. However, the report
also stated that she was only “able to attend some visitation†while living in
Texas between January and April 2012.
Nonetheless, we will assume that Mother fulfilled the visitation
requirement, and address other facets of the beneficial relationship exception.
A
beneficial relationship is one that “promotes the well-being of the child to
such a degree as to outweigh the well-being the child would gain in a permanent
home with new, adoptive parents.†(
567, 575.) A parent claiming the
beneficial relationship exception bears a “heavy†burden of proving by a
preponderance of the evidence that the exception applies. (In re
C.F. (2011) 193 Cal.App.4th 549, 558; In
re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) “[T]he parent must show that severing the
natural parent-child relationship would deprive the child of a
attachment such that the child would be greatly
harmed.†(In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Rulings on the beneficial relationship
exception are reviewed for substantial evidence. (See In
re Casey D., supra, 70
Cal.App.4th at p. 53.)
Here,
as in In re Casey D., supra, 70 Cal.App.4th at p. 53, the social worker
provided substantial evidence to reject the beneficial relationship
exception. Relevant factors include “the
portion of the child’s life spent in the parent’s custody,†and “the positive
or negative effect of interaction between the parent and the child.†(In re
Angel B., supra, 97 Cal.App.4th
at p. 467.) J.J. had spent most of
his life in Mother’s custody, but, according to the social worker’s .26 report,
he also appeared to be the child most damaged by her parenting, and he did not
seek her affection during visits. (See
799, 811 [beneficial relationship did not exist where, among other things, the
child did not turn to the parent for affection and did not mind when visits
ended].) C.V. was in Mother’s custody
for only the first half of his young life, and appeared more interested in playing
with his toys than interacting with Mother.
Mother had the strongest bond with her daughter J.V., but to establish
the beneficial relationship exception, “parents must do more than demonstrate
‘frequent and loving contact’ [citation], an emotional bond with the child, or
that the parents and child find their visits pleasant. [Citation.]
Rather, the parents must show that they occupy ‘a parental role’ in the
child’s life.†(In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109; see also
823, 827 [“pleasant and emotionally significant†relationship is
insufficient].)
Mother
left the children in their great grandparents’ custody before they were
adjudged wards, and over the course of the dependencies did not progress beyond
supervised visitation. The evidence did
not demonstrate that she played the requisite parental role in their lives, or
that her relationships with any of them were sufficiently beneficial to justify
denying them of the benefits of adoption.
In
addition, there is no merit to Mother’s contention that the court failed to
consider the beneficial relationship exception at the .26 hearing. The parties all argued the issue. Mother’s counsel maintained that the children
would benefit from continuing the parental relationship, while counsel for the
Bureau and the children argued that the quality of that relationship did not
justify denying the children permanence and stability. There is no reason for us to conclude that
the court ignored these arguments. Although most of the court’s comments
concerned Mother’s failure to obtain a psychological evaluation, its final
remarks focused on the best interests of the children: “[I]t is clear to the Court that [terminating
parental rights] is in the interest of the three children, who are not getting
any younger, that it is time for their lives to be finalized, despite the fact
that the mother is incapable of finalizing the issues in her life. [¶] I’m mindful of the fact that time,
especially as far as children of this tender age is concerned, moves on
rapidly, and there is no reason for their youth to be put on hold while the
mother attempts to organize her own life. [¶] Based on this and the fact
that it is clearly in the best interest of the children, the Court is going to
adopt [the Bureau’s] [r]ecommendations . . . .†Thus, the record does not substantiate
Mother’s claim that the court “did not consider the harm to the minors that
would result from severing the parental-child relationship they had with
[her].â€
PETITION FOR HABEAS CORPUS (A137988)
Mother
argues in her petition for habeas corpus that her counsel’s “failures to
investigate [her] case, to properly support the section 388 petition by
providing documentary evidence, and to adequately prepare for the 366.26
hearing by subpoenaing [her] psychological assessments demonstrates that
[counsel] failed to provide adequate representation . . . .â€
A. Record
Mother’s habeas petition is accompanied by her
declaration that, after the .26 hearing, she went directly to Contra Costa
Health Services to ask how to obtain the reports of the psychological
assessments she had received there. She
filled out disclosure authorizations and obtained copies of a April 28, 2011
“Adult Clinical Assessment†and a June 25, 2012 “Initial Psychiatric Assessment,â€
which are attached to her habeas corpus petition. Mother declares: “Both my attorney and the social worker were
aware that I had completed the psychological and psychiatric assessments. To this day, I do not understand why the
social worker or my own attorney did not obtain these assessments on my
behalf.â€
The
April 2011 report stated that Mother said she had been “5150ed†on April 14,
2011, because “neighbors made a false statement against her.†Mother said that her children “were all taken
from her by CPS for unknown reason[s].â€
The report noted “needs med management,†and listed the dosages of
various medications Mother was taking.
The
June 2012 report stated that Mother said she was involuntarily hospitalized in
2011 “due to other people were watching her from [a] tunnel & she has
evidence to prove this.†The notes
describe Mother as “resistant/guarded about illness,†and “vague†about “past
hx.†Mother said that she did not need
the psychotropic medications she had been given in the hospital, and she
“declined to be started on any meds.â€
Under “Additional Info†the report said that Mother had finished two
years of college.
In
response to Mother’s petition, the County filed declarations from social
workers in the dependencies stating that the April 2011 and June 2012
assessments were not those required by her case plan. The social worker assigned to Mother’s cases
during the reunification period declares that she “repeatedly requested that [Mother]
obtain a psychological evaluation at the direction of the Bureau. I explained to her that this evaluation would
consist of a series of tests and interviews which would help evaluate her
mental health and help explain why she had a history of violent outbursts. It was also explained that the evaluation
would likely make recommendations as to a treatment plan for her.†According to her best information and belief,
the assessments Mother obtained were “as follow up to her involuntary
hospitalization pursuant to . . . section
5150. . . . Neither
appears to deal with her violent outbursts and how to deal with them.†The social worker on the cases following the
termination of services declares that she contacted the clinic that prepared
the assessments and “was informed that they reflected regularly scheduled
medication evaluations. The initial
medical evaluation was in April 2011.
[Mother] missed other scheduled appointments in May and July, 2011 and
August 20, 2012 and then attended an August 31 appointment
. . . .â€
B. Analysis
Indigent
parents whose children are the subject of dependency proceedings and are placed
out of the home have a right to competent appointed counsel. (In re
Paul W. (2007) 151 Cal.App.4th 37, 66 [conc. opn. of Bamattre-Manoukian,
A.P.J.].) Ineffective assistance of
counsel can be asserted as grounds for reversal in a habeas corpus petition
filed while a timely appeal from an adverse order is pending. (Id.
at p. 68; In re Carrie M. (2001)
90 Cal.App.4th 530, 533-534.) “The
habeas corpus petitioner bears a ‘heavy burden’ to plead facts sufficient to
warrant relief.†(In re Paul W., supra, at p. 69.)
The “petitioner must show that ‘counsel failed to act in a manner to be
expected of reasonably competent attorneys practicing in the field of juvenile
dependency law’ and must also ‘establish that the claimed error was
prejudicial.’ [Citation.] The test for prejudice is whether it is
‘ “reasonably probable†’ that a more favorable result would have
occurred in the absence of counsel’s
alleged failings. [Citations.]†(Id.
at p. 66.) “A court need not
evaluate whether counsel’s performance was deficient before examining prejudice
. . . .†(
1166, 1180.)
For
many reasons, there is no reasonable probability that Mother would have
succeeded on the section 388 petition filed by her counsel, or avoided
termination of her parental rights if the psychiatric reports had been brought
to light. It is not apparent that either
psychological assessment was the kind the Bureau was seeking that would involve
psychological testing and formulation of a treatment plan. And the reports did not paint Mother in a
favorable light. The 2011 report
reinforced the critical descriptions of her as someone who blamed others for
her problems. She told the clinician
that her involuntary commitment resulted from false accusations, and that she
lost custody of her children for “unknown reasons,†as if she were in no way
responsible. The 2012 report has her
saying that she was committed because people were watching her from a tunnel,
thus suggesting that she might be delusional, and she appeared neither
forthcoming about her history nor amenable to treatment.
The
Bureau’s opposition to Mother’s petition points out that the reports harmed
rather than helped her case. In
response, Mother argues that the problem with the failure to produce the
reports was that it undermined her credibility at the. 26 hearing. But, the court had multiple reasons to doubt
Mother’s credibility apart from what transpired at the .26 hearing. She claimed to have raised and nurtured the
children from their births, which was untrue.
She claimed no alcohol abuse or drug use, which was untrue. She claimed to have a college degree, which
was also not true.
Further,
by the time of the .26 hearing, Mother’s credibility and compliance with her
case plan were not central issues. “The
focus of a dependency ultimately shifts to the child’s interest in permanency,
and any evaluation of the parent’s rights [to competent counsel] in the later
stages of the proceedings must take into account that the purpose and objective
of the dependency law is to achieve a safe and permanent home for the
child.†(In re Paul W., supra, 151 Cal.App.4th at p. 68.) The focus at the .26 hearing was on the children
and their long-term interests, not on Mother and her interest in
reunification. Thus, it is highly
unlikely that production of the psychological reports appended to Mother’s
declaration would have thwarted the permanent plans of adoption the court ordered.
We
note finally that, apart from her failure to obtain a satisfactory
psychological evaluation, Mother’s efforts to retain her parental rights were
not exemplary. Before her reunification
services were terminated,
name="_ftnref4" title="">[4]
she moved to Texas and told the Bureau that she wanted to give up her parental
rights. She did not attend the
originally scheduled, July 10 termination hearing, and avoided the consequences
of such a glaring dereliction only because an alleged father appeared and
precipitated a continuance to August 22.
For
all of these reasons, we see no prospect that presentation of the psychological
assessments at the .26 hearing, or in the section 388 petition on the eve of
that hearing, would have changed any outcome.
DISPOSITIONS
The
orders denying the section 388 petitions and terminating parental rights are
affirmed. The petition for habeas corpus
is denied.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
Subsequent statutory references are to the Welfare and Institutions Code.
relatives are sometimes referred to in the record as “grandparents†or “aunt,â€
but those designations appear to refer to their relationship with Mother, not
the children. The jurisdictional report
stated that the children’s grandmother was living in Houston.
