In re Joshua F.

Filed 9/29/06 In re Joshua F. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this appeal, the mother of a dependent child challenges the juvenile court’s jurisdictional and dispositional orders, asserting the lack of sufficient evidence. She also contends that her counsel was ineffective. For reasons explained below, we reject the mother’s contentions. We therefore affirm the challenged orders.

FACTs AND PROCEDURAL HISTORY

This proceeding involves Joshua F., who was born in August 2001. Joshua’s mother is appellant Jessica P. Joshua’s father, Joseph F., is not a party to this appeal.

Background

The mother has a criminal history that dates back to October 2000. Some of her criminal convictions are drug-related; others are for false personation or false identification; still others involve theft or receipt of stolen property.

One consequence of the mother’s crimes is that she has been in jail or prison for significant periods of Joshua’s life. In April 2002, the mother was convicted of petty theft and false personation and sentenced to 112 days in jail. In August 2003, she was convicted following a shoplifting incident and sentenced to 90 days in jail. In July 2004, police arrested the mother, along with her friends and roommates, Michael and Laurina M. The M’s were convicted of drug offenses. The mother was convicted of receiving stolen property and she was sentenced to 16 months in prison in October 2004.

Joshua’s Living Arrangements

Prior to the institution of these proceedings, Joshua lived with various caretakers.

When he was a newborn, Joshua and his mother lived with Emma and Ron T. The T’s are the mother and stepfather of Joshua’s father, who was incarcerated at the time. That living arrangement ended at the request of the T’s, who suspected the mother of abusing drugs.

Thereafter, Joshua and his mother went to live with her friends, Michael and Laurina M. (Laurina is a niece of Ron T., Joshua’s paternal step-grandfather.) Joshua lived with the M’s -- and with his mother, when she was not incarcerated -- from the time that he was several months old until July 2004, the month before his third birthday, when both his mother and the M’s were arrested.

Following his mother’s arrest in July 2004, Joshua went to stay briefly with Michael M’s father. The mother then placed Joshua with Emma and Ron T.

In October 2004, when the T’s could not longer care for Joshua, he went to live with Troy and Michelle M. (Michelle M. is another niece of Ron T.)

Guardianship Proceedings

In November 2004, Troy and Michelle M. petitioned for appointment as Joshua’s guardians. The following month, the court appointed counsel for Joshua in that proceeding. (The same attorney continued to represent the child through the later dependency proceedings.) An investigation for a non-relative guardianship was undertaken.

In February 2005, the unified family court granted temporary guardianship of Joshua to Michelle and Troy M. Within a month, however, the couple had decided against pursuing permanent guardianship, based on their own family situation.

As a result of the court’s investigation, a referral was made in early March 2005 to the Department of Family and Children’s Services (the Department). The social worker who responded to the referral interviewed Michelle M., Joshua’s temporary guardian. Because Michelle and her husband Troy were no longer available as a permanent placement for Joshua, and given the circumstances of Joshua’s parents and his other relatives, the social worker was concerned about the lack of a caretaker for the child. The social worker concluded that the risk to Joshua was high, and he was “paper admitted to the shelter.”

In late March 2005, a memorandum was prepared for the family court by the Social Services Agency, signed by a court investigator and a social worker supervisor. The memorandum described the history of the guardianship proceedings, including the decision by Michelle and Troy M. to withdraw as candidates for permanent guardianship. The memorandum also noted that Michael and Laurina M. “were interested in caring for Joshua.” It further explained that Michelle and Troy M. were “not willing to give Joshua up, until [Michael and Laurina M.] have been approved for placement.” But the memorandum questioned the latter couple’s suitability as guardians, given their criminal history and substance abuse issues. The memorandum therefore recommended dismissal of the temporary guardianship and the intervention of Child Protective Services, “so that a Dependency Petition can be filed, and a stable living situation can be found for Joshua.”

In mid-April 2005, the family court dismissed the temporary guardianship of Michelle and Troy M. Joshua was staying with Michael and Laurina M., on an extended visit of several weeks duration. The court ordered them to take Joshua to the children’s shelter. On April 25, 2005, the M’s complied with the order, albeit unwillingly.

Dependency Petitions; Detention

On April 27, 2005, the Department filed a petition on Joshua’s behalf, asserting grounds for dependency jurisdiction under Welfare and Institutions Code section 300.[1] The petition stated two separate statutory grounds. It first alleged that both the mother and the father had failed to protect the child. (§ 300, subd. (b).) As to that ground, one of the Department’s factual allegations was that “both the mother and alleged father, Joseph F[.], have substance abuse problems, which interfere with the ability of either of them to provide a safe and stable living environment” for Joshua. As a second statutory ground, the petition asserted that Joshua had been left without any provision for support. (§ 300, subd. (g).) In part, that assertion was based on the fact that the mother was then incarcerated.

On April 28, 2005, the juvenile court conducted a detention hearing. The mother was not present, but the court appointed an attorney for her. The court detained Joshua, and it continued his placement in a emergency satellite foster home. The mother was released from prison the following day.

On May 5, 2005, the Department referred the mother for services, including a parent orientation program, parenting education classes, drug assessment, drug testing, a 12-step program, and counseling services.

On May 18, 2005, the Department filed a first amended petition, eliminating the allegations under section 300, subdivision (g), presumably because the mother had since been released from prison.

On May 26, 2005, the Department filed a second amended petition, which added the allegation that “due to the mother’s frequent incarcerations, she has been unable to provide a stable living environment for Joshua.”

Interim Orders

The jurisdiction hearing, initially scheduled for May 2005, was continued a number of times. It was finally heard in October 2005.

In the interim, the court conducted several hearings that resulted in orders affecting Joshua and his mother. In June 2005, the court ordered the mother to undergo random drug testing twice a week. In September 2005, the court signed orders authorizing Joshua’s participation in play therapy and permitting him to enroll in preschool.

Starting in May 2005, the mother had supervised visitation with Joshua, which took place four times a week, at two different sites. She missed a number of visits and was late for many others. In late September 2005, one site cancelled the mother’s visitation due to excessive absences.

Jurisdiction

The contested jurisdiction hearing was held on October 12, 2005. The mother was not present. Her counsel requested a continuance, which the court denied.

At the hearing, the court received a substantial volume of documentary evidence. The Department submitted eight reports, including its jurisdictional report dated May 23, 2005 and several addenda, plus its dispositional report dated September 13, 2005. The mother submitted in evidence a notarized letter, dated July 17, 2002, which stated her intent to relinquish Joshua’s temporary custody to Laurina M. in the event that the mother could not care for him because of incapacity or incarceration.

The court also entertained testimonial evidence. The Department’s witnesses were the social worker and the father. For her part, the mother offered brief testimony from Laurina M. The court then heard closing arguments.

After the presentation of evidence and argument, the court held an unreported sidebar discussion with counsel. Thereafter, on the record, the court sustained jurisdiction over Joshua, saying that it had “made the jurisdictional finding.”

The court scheduled a separate dispositional hearing for the next day, which was then continued for two weeks.

Disposition

The court held the disposition hearing on October 27, 2005. The mother had been arraigned on criminal charges the previous day, and her custody status was unknown when the court made its dispositional orders.

In terms of evidence, the Department requested the court to consider all previously submitted reports for purposes of disposition. The Department recommended family reunification services for the mother and Joshua. But it asked that “no visitation take place until she’s released because of the age of the child.”

The mother’s attorney stated: “We will be submitting to the reunification services.” But counsel did request contact visits between the mother and Joshua, if and when the mother became eligible for them while in jail. The court observed: “So she’s awaiting trial at this point in time so she’s not going to be entitled to contact visits or eligible for the P.A.C.T. program.” (P.A.C.T. is an interactive parenting class conducted through the local jail facility.)

Near the end of the hearing, the court had unreported sidebar discussions, first with counsel and then with the parents. Back on the record, the court said: “The matter is at this time deemed submitted. And the court will be making an order for reunification services for both the mother and the natural father.” With respect to the mother, the court ordered supervised visitation, to commence upon her release. Noting that Joshua was “only four years old,” the court stated that it would not “order him brought to the jail to visit the mother.” Nevertheless, the court said, “if she remains in jail and is sentenced and becomes eligible for contact visits or the P.A.C.T. program, then you need to bring it back to court so that I can make a different order.” The court ordered the Department to prepare a formal order after hearing. That order was entered in February 2006.

Appeal

In December 2005, the mother filed a notice of appeal.

The mother raises three issues here. First, she attacks the juvenile court’s jurisdictional order, asserting lack of sufficient evidence. Next, the mother challenges the dispositional order on the same ground. Finally, she claims that her attorney was ineffective for failing to contest the dispositional orders.

The Department filed a responsive brief, opposing the mother’s arguments. Joshua has not appeared on appeal.

DISCUSSION

To establish the proper framework for analyzing the mother’s contentions, we begin with a brief overview of the legal principles that inform our decision. Against that backdrop, we analyze the orders challenged here.

I. Overview of Dependency Law

The Legislature has provided for juvenile court jurisdiction over dependent children. (See § 300 et seq.)

A. Legislative Objectives

The primary goal of the dependency statutes is “to ensure the safety, protection, and well-being of children who are at risk of abuse, neglect, or exploitation, while preserving the family whenever possible.” (In re David M. (2005) 134 Cal.App.4th 822, 824.) As the California Supreme Court has explained: “A parent’s interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights. [Citation.] Likewise, natural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] The interests of the parent and the child, therefore, must be balanced.” (In re Marilyn H. (1993) 5 Cal.4th 295, 306.)

B. Procedural Framework

In dependency proceedings involving the removal of children from their parents, there are generally four phases: jurisdiction, disposition, reunification (unless bypassed), and the selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391.) The first three phases are at issue in this appeal.

1. Jurisdiction

To justify the assumption of dependency jurisdiction, the juvenile court must find by a preponderance of the evidence that the affected child falls within one or more of the statutory descriptions listed in section 300. (§ 355; In re David M., supra, 134 Cal.App.4th at p. 829.)

2. Disposition

As to disposition, the juvenile court “has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order” accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Among the permissible dispositional choices is removing the child from the parent’s physical custody. (§ 361.)

3. Reunification

“When the state removes children from their parents, it is obliged to make reasonable efforts to reunify the family.” (In re Julie M. (1999) 69 Cal.App.4th 41, 49.) Generally speaking, parents of dependent children are statutorily entitled to reunification services “aimed at assisting the parent in overcoming the problems that led to the child’s removal.” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) Reunification plans “should be specific and internally consistent, with the overall goal of resumption of a family relationship.” (In re Luke L. (1996) 44 Cal.App.4th 670, 678.) They must be tailored to the particular situation. (Ibid.) “Among its components, the reunification plan must include visitation.” (Id. at p. 679.) “That visitation must be as frequent as possible, consistent with the well-being of the minor.” (Ibid.)

C. Assistance of Counsel

A parent in a juvenile dependency proceeding is entitled to the effective assistance of trial counsel. (§ 317.5; In re Marilyn H., supra, 5 Cal.4th at pp. 307-308; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To establish denial of that right, the parent must show (1) counsel’s failure to act as a reasonably competent dependency attorney would, and (2) a reasonable probability that a more favorable result would have been achieved but for counsel’s errors. (In re Kristin H., at pp. 1667-1668.) A claim of ineffective assistance of counsel may be raised on appeal from an order in a dependency case. (In re S. D. (2002) 99 Cal.App.4th 1068, 1077.)

II. Analysis

The mother challenges jurisdiction and disposition, asserting insufficiency of the evidence as to each order. She also contends that her trial counsel acted incompetently by agreeing to the Department’s recommendations concerning reunification services. We consider each contention in turn.

A. Jurisdictional Order

1. Standard of Review

We review the juvenile court’s jurisdictional findings against the substantial evidence rule. (See, e.g., In re David M., supra, 134 Cal.App.4th at p. 828; In re Kristin H., supra, 46 Cal.App.4th at p. 1649.) “In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.” (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) “Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748-749, fn. 6.) “Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.” (In re Katrina C., at p. 547.) Applying this deferential standard, we view the evidentiary record in the light most favorable to the order. (In re Diamond H., at p. 1135; In re Kristin H., at p. 1649.)

2. Statutory Requirements for Dependency Jurisdiction

At issue here is the juvenile court’s assumption of jurisdiction under section 300, subdivision (b).[2] To warrant jurisdiction under that subdivision, there must be evidence of “three elements: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820. Accord, In re David M., supra, 134 Cal.App.4th at p. 829.)

As to the first element, a parent’s substance abuse may constitute the requisite neglectful conduct supporting dependency jurisdiction. The statute explicitly permits jurisdiction based on “inability of the parent [] to provide regular care for the child due to the parent’s … substance abuse.” (§ 300, subd. (b).) The dependency statutes also recognize that “a home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) Other forms of parental neglect likewise may support jurisdiction. One pertinent example is the parent’s incarceration or other absence, coupled with failure or inability to arrange care for the child. (See, e.g., In re Alexis H. (2005) 132 Cal.App.4th 11, 16; In re James C. (2002) 104 Cal.App.4th 470, 483-484; Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1185; cf., In re Athena P. (2002) 103 Cal.App.4th 617, 629 [jurisdiction under § 300, subd. (g)]; In re S. D., supra, 99 Cal.App.4th at p. 1077 [same].)

Considering the second element, causation, drug-induced parental neglect might cause harm, particularly for “children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety.” (In re Rocco M., supra, 1 Cal.App.4th at p. 824.) Furthermore, there are various ways in which a parent’s substance abuse problem might create a risk that the child will ingest drugs. (Id. at p. 825.) Pertinent examples include “neglecting [the child’s] needs in a way which might be reasonably expected to create the kind of emotional and psychological conditions in which substance abuse typically thrives;” and “exposing [the child to the parent’s] own drug use, thus impliedly approving such conduct and even encouraging him to believe that it is an appropriate or necessary means of coping with life’s difficulties.” (Ibid.)

The third element -- risk of injury -- requires “evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.” (In re Rocco M., supra, 1 Cal.App.4th at p. 823.) As noted above, that requirement may be satisfied where a child -- particularly a very young child -- does not receive adequate supervision and care. (Id. at p. 824.) But “the fact that a child has been left with other caretakers will not warrant a finding of dependency if the child receives good care.” (Ibid.)

3. Sufficiency of the Evidence

The mother challenges the sufficiency of the evidence presented in this case to support dependency jurisdiction over Joshua under section 300, subdivision (b). First, she argues, the record lacks substantial evidence of substance abuse on her part. Furthermore, she contends, even assuming that there is such evidence, there is no proof that her drug use harmed Joshua. Finally, the mother urges, the evidence does not support jurisdiction with respect to the petition’s other allegations, specifically her frequent incarceration.

a. The requisite neglectful conduct: the mother’s substance abuse

We first consider the evidence contained in the Department’s reports. “The juvenile court may properly rely upon a social worker’s report to support a jurisdictional finding under section 300 as long as the opportunity to cross-examine the social worker is provided.” (In re Brian W. (1996) 48 Cal.App.4th 429, 433-434, citing In re Malinda S. (1990) 51 Cal.3d 368, 382.) As reflected in the social worker’s reports, the mother’s criminal history includes several convictions for drug-related offenses. In October 2000, the mother suffered convictions for possession and use of a controlled substance, and she was sent to drug court. In August 2003, she was convicted of possession of a controlled substance in prison. In June 2004, the mother tested positive for amphetamines. The mother is required to register as a narcotics offender until 2011. She was described as a drug addict by her own mother, by Joshua’s father, Joseph F., and by Joshua’s paternal grandmother, Emma T. The mother associated with known drug users, including Michael and Laurina M., who are registered narcotics offenders.

In addition to the social worker’s reports, the court had testimonial evidence of the mother’s substance abuse problem. For one thing, Joshua’s father testified to using drugs with the mother several times after Joshua was born, while the child was present at the house. More significantly, the social worker testified at the jurisdictional hearing to “behavior suggestive of current use including weight loss, agitation, failure to drug test for our department.”

The mother challenges the sufficiency of the social worker’s testimony to prove current use of illegal drugs. “There was no clinical evidence of substance abuse” presented here, the mother observes, asserting: “In other contexts, the courts have rejected attempts to label a parent a ‘substance abuser’ without clinical evidence to support this.” In support of that assertion, the mother cites Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322. The Jennifer A. case is distinguishable. As the court noted there: “The social worker testified that in his many contacts with Mother, she never seemed to be under the influence of alcohol or drugs.” (Id. at p. 1346.) Our facts are very different. Here, the social worker characterized her observations of the mother as “evidence of suspected drug use.”

Viewing the record in the light most favorable to the challenged jurisdictional order, we conclude that the foregoing evidence amply supports the juvenile court’s implied factual finding that the mother had a current substance abuse problem at the time of the jurisdictional hearing.

b. Causation and Risk of Future Injury

The mother insists that she did not neglect or otherwise harm Joshua while using drugs. She relies on In re David M., supra, 134 Cal.App.4th 822.

In the David M. case, the Court of Appeal found insufficient evidence to support dependency jurisdiction under section 300, subdivision (b). (In re David M., supra, 134 Cal.App.4th at p. 829.) The court characterized the record before it as lacking “any evidence of a specific, defined risk of harm to either David or [his sibling] resulting from mother’s or father’s mental illness, or mother’s substance abuse.” (Id. at p. 830.) The court continued: “Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative. [Citation.]

The evidence was uncontradicted that David was healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home. Whatever mother’s and father’s mental problems might be, there was no evidence those problems impacted their ability to provide a decent home for David.” (Ibid. See also, e.g., Jennifer A. v. Superior Court, supra, 117 Cal.App.4th at p. 1327 [“social worker testified Mother did not have a substance abuse problem affecting her parenting skills”].) Nevertheless, the David M. court observed: “The juvenile court did identify a valid concern regarding mother’s selection of caretakers for David. Mother testified her friend Teresa babysat David three or four times…. Mother knew that Teresa used marijuana, but Teresa was not under the influence of marijuana when she babysat David.” (In re David M., at p. 831.) Moreover, the agency “offered no evidence that David was endangered, much less harmed, while under Teresa’s care, or that David was exposed to drugs, drug paraphernalia, or even secondhand marijuana smoke.” (Ibid.)

The David M. case does not assist the mother here, as it is factually distinguishable. In David M., there was no evidence that the child “was exposed to drugs, drug paraphernalia, or even secondhand marijuana smoke.” (In re David M., supra, 134 Cal.App.4th at p. 831.) By contrast, the record in this case supports an inference that Joshua was exposed to drugs and drug abuse in the home that he shared with his mother and the M’s until July 2004, when the three adults were arrested. In the search that preceded that arrest, the officers found suspected marijuana above the kitchen stove. Furthermore, both Michael M. and Laurina M. “exhibited the objective symptoms of stimulant influence….” Michael admitted using methamphetamine just the day before. Laurina became agitated during the encounter with police and was handcuffed. Screaming loudly, Laurina told Joshua that “the police hurt her, at which the young boy began to cry.”

In this case, the court could reasonably find that Joshua had been actually and substantially harmed by past exposure to this lifestyle and its consequences, whether or not the drugs in his home were within his reach. (Cf., In re W. O. (1979) 88 Cal.App.3d 906, 910 [there was “a ‘remote possibility’ that the children may be endangered by their present environment” where drugs were in reach, “but remote possibilities do not provide grounds sufficient for removing a child from parental custody”].) “Child abuse takes many forms. Exposing children to a life of drug use is one of those forms of child abuse.” (Id. at p. 912 (dis. opn. of Scott, J.).) As Joshua’s attorney commented at a hearing prior to jurisdiction, “the drug usage and having his home being raided by police has affected him and he’s had several traumatic events in his life.”

The question then becomes whether the risk of harm was likely to continue. As one court recently reaffirmed, “the purpose of section 300, subdivision (b) is to protect the child from a substantial risk of future serious physical harm and that risk is determined as of the time of the jurisdictional hearing.” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397.) Jurisdiction thus may be unwarranted where the facts alleged in the petition represent an isolated instance of past parental neglect. Thus, for example, jurisdiction could not be based on a single incident of sexual abuse by an acquaintance in whose care the children were placed, where the evidence showed that he would never be trusted with them again. (Id. at p. 1398.) Likewise, jurisdiction was not warranted simply because the child was placed with a babysitter known to use marijuana, where the only evidence was that he would never be placed in her care again. (In re David M., supra, 134 Cal.App.4th at p. 831.) To support jurisdiction, there must be evidence that the child “will suffer, in the future, serious physical harm as a result of her parents’ negligent failure to protect her from the conduct of a custodian or caretaker. (§ 300, subd. (b).)” (In re Savannah M., at p. 1398.)

In this case, the juvenile court was warranted in finding that Joshua was exposed to a likelihood of future harm. Here, the mother’s choice of caretakers and living arrangements was not an isolated decision, but instead was a pattern repeated over time. After she served the jail sentences flowing from her 2003 convictions, the mother returned to living with the M’s. After she served the prison sentence arising from her 2004 conviction, the mother again returned to living with the M’s. In making these choices, the mother failed to provide Joshua “a home environment free from the negative effects of substance abuse” which “is a necessary condition for the safety, protection and physical and emotional well-being of the child.” (§ 300.2.) The fact that the mother made these choices repeatedly over time supports an inference that Joshua was at risk of being placed in the same harmful environment in the future. (Cf., In re David M., supra, 134 Cal.App.4th at p. 831 [no “substantial evidence of any risk of future harm” where the “only testimony on the topic was that Teresa would not be babysitting David again”].)

c. Other evidence supporting jurisdiction

In addition to the substance abuse allegations, the seconded amended petition also asserts the mother’s inability to protect and supervise Joshua because of her recurring periods of incarceration. More specifically, the petition alleges that “due to the mother’s frequent incarcerations, she has been unable to provide a stable living environment for Joshua. This three-year-old child has had four sets of caretakers in his young life, and has been away from his mother for almost half of his life.”

The mother points out that she was not incarcerated at the time of the jurisdictional hearing, and she argues: “There are no published cases which stand for the proposition that a juvenile court may remove a child from his mother for neglect under section 300 subdivision (b) because she has been incarcerated in the past but not incarcerated at the time of the jurisdictional hearing.” She further argues that the “only basis for jurisdiction relating to a custodial parent’s current incarceration is section 300 subdivision (g) [], which provides that jurisdiction may be taken when the parent is incarcerated and fails to make any arrangements for her child’s care while she is incarcerated.” The mother characterizes the court’s determination as an attempt to establish jurisdiction based solely on her criminal history.

The mother’s argument misses the point. Under section 300, subdivision (b), jurisdiction does not turn on whether the parent is currently incarcerated. Instead, the critical issue is whether the parent has failed “to adequately supervise or protect the child….” (§ 300, subd. (b).) As one court stated in affirming jurisdiction under subdivision (b): “Because the father was incarcerated, he was not able to adequately protect the children from the deplorable home conditions.” (In re James C., supra, 104 Cal.App.4th at p. 483.)

In this case, the mother’s frequent incarceration left her unavailable to parent her young child, leading to a situation that harmed him. There was evidence that Joshua suffered from abandonment issues, which caused him to act out. According to a referral report made in early March 2005, the temporary guardian, Michelle M., stated “that the child probably has abandonment and attachment issues as he has been left in the care of many different people.” Michelle M. further reported: “The child [] has trouble sleeping as he wakes up every hour on the hour.” At a hearing in September 2005, the social worker reported that Joshua “does have some anger.” At the same hearing, Joshua’s attorney stated that Joshua “hit other children unprovoked. I am concerned that he has quite a bit of anger.” The social worker further observed that Joshua “was separated from his mother at least a year prior to our involvement. And there’s been some adjustment there as well as multiple family placements prior to our involvement.” Joshua’s attorney likewise stated “that since the mother was incarcerated for approximately half of the minor’s life and the child was raised primarily by her friends, the M[‘]s, that I was concerned whether the child was bonded.”

As the California Supreme Court has said, children “have compelling rights … to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.” (In re Marilyn H., supra, 5 Cal.4th at p. 306.) Joshua was denied that right by his mother’s frequent absences and his placement with one family after another.

d. Conclusion

This record contains sufficient evidence that the mother’s drug abuse and her frequent incarcerations created a substantial risk of harm to Joshua. The juvenile court therefore was warranted in assuming jurisdiction over Joshua under section 300, subdivision (b).

B. Dispositional Order

The mother next challenges the dispositional order. She first attacks the visitation order, arguing that there was not sufficient evidence to support the denial of visitation while she was incarcerated. She likewise asserts the lack of sufficient evidence that the reunification services offered to her were reasonable. To establish the proper framework for considering these contentions, we first set forth the standard that governs our review.

1. Standard of Review

“The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court’s determination in this regard absent a clear abuse of discretion.” (In re Christopher H., supra, 50 Cal.App.4th at p. 1006.) That deferential review standard applies to the provision of reunification services. “In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed.” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) “We construe all reasonable inferences in favor of the juvenile court’s findings regarding the adequacy of reunification plans and the reasonableness of [the Department’s] efforts.” (In re Julie M., supra, 69 Cal.App.4th at p. 46.)

2. Visitation

As a general rule, “the reunification plan must include visitation.” (In re Luke L., supra, 44 Cal.App.4th at p. 679.) The right of visitation is fundamental, arising from the parent-child relationship itself. (In re Julie M., supra, 69 Cal.App.4th at p. 49.) “But a parent’s liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being. [Citation.] While visitation is a key element of reunification, the court must focus on the best interests of the children ‘and on the elimination of conditions which led to the juvenile court’s finding that the child has suffered, or is at risk of suffering, harm specified in section 300.’ “ (Id. at p. 50.)

Where the parent is incarcerated, reunification services “may include” visitation “where appropriate.” (§ 361.5, subd. (e)(1)(C). See, e.g., In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.)

Here, the juvenile court ordered “a minimum of six-hours-a-week” supervised visitation, to commence upon her release from custody. The court ordered no immediate visitation, however. In doing so, the court evidently was familiar with the visitation programs available to incarcerated parents. As it observed: “So she’s awaiting trial at this point in time so she’s not going to be entitled to contact visits or eligible for the P.A.C.T. program.”

The mother complains that the court made no provision for visitation short of contact visits. But the court apparently felt that the child was too young for window visits. As it observed: “And he’s only four years old. And mom is -- and his mother is in a -- not going to be eligible for contact visits at this time and is still awaiting bail or release or whatever. So I won’t order him brought to the jail to visit the mother.

But if she’s -- if she remains in jail and is sentenced and becomes eligible for contact visits or the P.A.C.T. program, then you need to bring it back to court so that I can make a different order.”

We find no basis for reversing the juvenile court’s implied finding that it would be detrimental for Joshua to be brought to the local county jail for window visits. Given his young age and the mother’s recent pattern of missing visits, the juvenile court could reasonably conclude that Joshua might well find window visits confusing and disturbing, and thus detrimental. Moreover, the court made its visitation order the day after the mother had been arraigned, when her custody status was unclear. The record suggests a possibility of the mother’s fairly immediate release from custody -- either on bail or because the charges might be dropped. In addition, the court’s comments reflect its willingness to reconsider visitation as soon as the mother’s eligibility permitted contact visits. As explained above, we view the evidence in the light most favorable to the challenged order, indulging “all reasonable inferences in favor of the juvenile court’s findings regarding the adequacy of reunification plans….” (In re Julie M., supra, 69 Cal.App.4th at p. 46.) So viewed, the record here adequately supports the juvenile court’s decision regarding visitation.

3. Other Reunification Services

“The reunification plan is ‘a crucial part of a dispositional order.’ “ (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010.) But attempts at reunification properly begin well before disposition, with the child’s detention. As provided by statute: “Whenever a court orders a child detained, the court … shall order services to be provided as soon as possible to reunify the child and his or her family if appropriate.” (§ 319, subd. (e).)

“With respect to an incarcerated parent, there is a statutory requirement that reunification services be provided ‘unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor.’ (§ 361.5, subd. (e)(1).)” (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1011, fn. omitted.) Where no such finding of detriment is made, reasonable reunification services must be provided during the parent’s incarceration. (Ibid.; see also, e.g., In re Brittany S., supra, 17 Cal.App.4th at p. 1406.) “The department must preliminarily identify services available to an incarcerated parent. [Citation.] It cannot delegate to an incarcerated parent the responsibility for identifying such services. [Citation.] The department’s employees may not simply conclude that reunification efforts are not feasible on the sole ground the parent is incarcerated.” (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1012.)

By statute, reunification services to incarcerated parents “may include, but shall not be limited to, all of the following:

(A) Maintaining contact between the parent and child through collect telephone calls.

(B) Transportation services, where appropriate.

(C) Visitation services, where appropriate.

(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.” (§ 361.5, subd. (e)(1).) The statute further provides: “An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.” (Ibid.)

“The adequacy of reunification plans and the reasonableness of the [Department’s] efforts are judged according to the circumstances of each case.” (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164.) “The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances.” (In re Misako R., supra, 2 Cal.App.4th at p. 547. Accord, In re Julie M., supra, 69 Cal.App.4th at p. 48.)

Among the relevant factors in the analysis are these: whether the Department properly identified the problems leading to the child’s removal, whether it “offered services designed to remedy those problems,” and whether it “made reasonable efforts to assist the parents” in achieving reunification. (Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1165, internal quotation marks omitted.)

In this case, the record amply supports the juvenile court’s determination that the Department designed and offered reasonable services to the mother.

First, the Department identified the problem leading to removal as the mother’s substance abuse problem, which she denied, and its attendant consequences. In the disposition report, the social worker opined that the mother “needs to address the issues that led to her two successive periods of imprisonment, resulting in an almost two-year absence from her young son’s life. Specifically, this worker strongly suspects that [the mother] has a substance abuse problem, based on her previous history of drug use, refusal to drug test, her psychomotor agitation, change in personality, and extreme weight loss over the past few months.”

Next, the Department created a service plan that was designed to ameliorate the problems that led to Joshua’s removal. The reunification plan offered services at two phases in the proceeding: shortly after detention and then again at disposition.

In early May 2005, soon after Joshua was detained, the Department referred the mother for services. This referral was given during a time when the mother was not incarcerated. The services included a parent orientation program, parenting education classes, drug assessment, drug testing, a 12-step program, and counseling services. The mother completed the basic parenting class. The mother also submitted to a drug and alcohol assessment, but no recommendation for services followed, because she claimed that she had not used methamphetamines for five years. The mother failed to comply with the order for drug testing, despite the fact that the Department arranged for alternative testing upon her objection to its usual service provider.

In the disposition report, which was prepared in September 2005 and filed the following month, the social worker stated: “Although [the mother] continues to deny that she has a substance abuse problem, this worker believes that she would benefit from -- at a minimum -- some basic addiction education classes, random drug testing, Twelve Step meetings, parenting classes, counseling and other such services that would support [the mother’s] ability to provide a safe and stable environment for her son.” In its order following the disposition hearing, the juvenile court required both parents to “participate in and successfully complete” enumerated services, including a parent orientation class; a parenting class; a counseling or psychotherapy program addressing specified issues, including substance abuse and recovery; random drug and alcohol testing; drug treatment programs in the event of missed, diluted, or positive drug tests; and a 12-step substance abuse program. In addition, the mother was ordered to participate in a supplemental parenting class. (Cf., Robin V. v. Superior Court, supra, 33 Cal.App.4th at p. 1166 [“virtually no showing” that the agency “ ‘offered services designed to remedy’ “ the problems that led to the child’s removal].)

The third factor in the analysis requires consideration of whether the services provided were adequate, given the specific circumstances of the particular family. Here, those circumstances included the mother’s history, which featured substance abuse, criminal activity, and the abandonment of her child to the care of others. The circumstances at disposition also included the mother’s most recent incarceration, which had occurred just the day before the hearing. The mother complains that the reunification plan was not adapted to her new circumstance of incarceration and that it required her to complete programs that were not available to her in jail. As to the first point, the Department learned of the mother’s incarceration on the day of the disposition hearing, giving it no opportunity to investigate and identify services available to the mother at the time. Furthermore, since the details of her custody status were unclear -- including the anticipated duration of her incarceration -- it would have been premature for the Department to attempt to alter the reunification plan at the time. As to the second point, this record offers no evidence that the ordered services were unavailable to the mother. (See, Pen. Code, § 1174.4 [eligibility for drug treatment under alternative sentencing program]; id., § 3416 [eligibility for community treatment programs].) In short, this is not a case where the Department “simply conclude[d] that reunification efforts are not feasible on the sole ground the parent is incarcerated.” (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1012.)

4. Conclusion

Substantial evidence supports the juvenile court’s implied finding that the Department designed and provided adequate reunification services, including visitation, given all the circumstances of this case.

C. Assistance of Counsel

As noted above, to establish denial of her right to the effective assistance of trial counsel, the mother must show (1) her counsel’s to act competently and (2) the reasonable probability of a more favorable result absent counsel error. (In re Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668.)

1. Performance

With respect to performance, we necessarily indulge a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington (1984) 466 U.S. 668, 689.) For that reason, we must be “highly deferential” to the tactical decisions made by counsel. (Ibid.)

Given the circumstances of this case, we are not persuaded that the mother’s attorney erred. On the question of visitation with Joshua, the mother’s counsel requested “if she is eligible for contact visits, that she be allowed to have contact visits.” Counsel did not specifically request any other type of visit. As to other services, the mother’s attorney stated: “We will be submitting to the reunification services.” As explained above, the mother’s custody status was then unclear. Apparently, there was some possibility of the mother’s prompt release, which would result in the resumption of visitation and in her ability to participate fully in other reunification services. Under these circumstances, we cannot say that the mother’s counsel failed to act as a reasonably competent dependency attorney would.

2. Prejudice

In any event, even if performance is substandard, there must be resulting prejudice. The issue is “whether it is reasonably probable that a different result would have obtained in the absence of counsel’s alleged incompetence.” (In re Kristin H., supra, 46 Cal.App.4th at pp. 1671-1672.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)

In our view, it is not reasonably probable that the court would have reached a different conclusion even if the mother’s trial counsel had not submitted on the Department’s reunification service plan. Again, the mother’s custody status was unsure. Furthermore, the juvenile court had expressed its willingness to reconsider its orders if that status changed. Given these facts, we fail to see any prejudice to the mother.

3. Conclusion

In sum, based on the appellate record before us, we discern neither incompetent performance by the mother’s trial counsel nor prejudice. We therefore reject her claim that she was prejudiced by ineffective assistance of counsel at the contested dispositional hearing.

SUMMARY OF CONCLUSIONS

We affirm the juvenile court’s jurisdictional order. Analyzed as a whole, and indulging all legitimate inferences in favor of the order, we find a sufficient basis--both factual and legal--for jurisdiction under subdivision (b). We also affirm the juvenile court’s dispositional order. We find no abuse of the court’s discretion in making the challenged orders for visitation and other reunification services; nor do we find ineffective assistance of trial counsel.

DISPOSITION

We affirm the jurisdictional and dispositional orders entered in October 2005.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Mihara, J.

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[1] Further unspecified statutory references are to the Welfare and Institutions Code.

[2] That provision reads in pertinent part as follows: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:

…

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse. … The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b.)