In re Sierra M.

Filed 9/19/06 In re Sierra M. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Jill M. (Mother) appeals after the juvenile court ordered her daughter, Sierra M., removed from her home. She contends that: The juvenile court used the wrong standard of proof in evaluating the evidence; the court should not have taken judicial notice of the juvenile court file of Sierra's brother; she did not receive effective assistance of counsel; and the evidence does not support the court's findings and determinations. We affirm.

I. BACKGROUND

A. The Petition and Reports

Contra Costa County Children & Family Services (the Department) filed a petition pursuant to Welfare and Institutions Code[1] section 300 on October 13, 2004. According to the petition, Sierra came within the jurisdiction of the juvenile court because Mother had a substance abuse problem that impaired her ability to parent; Mother did not regularly take the medication prescribed for her bipolar disorder; the family home had been found in an unsafe and unsanitary condition; and Mother had abused Sierra's brother by grabbing and squeezing his wrists, causing large swollen red marks and bruising. (§ 300, subds. (b), (j).) On October 14, 2004, the juvenile court detained Sierra and ordered supervised visitation with Mother.[2] Sierra was placed with her paternal grandparents.

Mother admitted two counts, which had been amended to allege that she had a history of substance abuse and bipolar disorder that impaired her ability to parent and that she had caused injury to Sierra's sibling's wrists. The juvenile court sustained those allegations and dismissed the other counts on October 26, 2004.

The Department prepared a disposition report for a November 8, 2004, hearing, recommending that Sierra remain out of Mother's custody and that Mother receive reunification services. According to the report, Mother had been involved with the child welfare system since the birth of her first child, Sean, and had an ongoing case in Santa Clara County regarding Sean. She acknowledged that she was not able to care for Sean due to his behavioral problems, but did not recognize the seriousness of her own problems. In particular, she did not understand the seriousness of the injuries she caused to Sean and how they related to her ability to care for Sierra. She attended individual therapy, but did not participate actively in the sessions, and did not consistently take the medication prescribed for her bipolar disorder. She was already receiving reunification services with regard to Sean, including substance abuse testing, individual and family therapy, domestic violence support groups, and parenting classes, but had not been consistent in keeping appointments for medication evaluation and monitoring. According to the report, a psychological evaluation completed in November 2003 indicated that Mother had an extremely difficult time utilizing reunification services, and that her high-risk behaviors made effective change and long-term improvement in functioning and emotional stability unlikely. However, the report expressed hope that Mother might be able to provide a safe home for Sierra with ongoing therapy, medication, and sobriety.

The matter was continued, and the Department filed an updated report for a January 4, 2005, hearing. The report stated that Mother had been participating in individual therapy and had begun working on more difficult issues; that she was taking her psychotropic medication on a regular basis; that she was participating in a parent education class, which she was scheduled to complete in March 2005; and that she was participating in an anger management class. Mother had been instrumental in seeking and enrolling in those programs. She was participating in random drug testing, with negative results. The Department concluded the serious risk to Sierra had diminished, and that Mother had complied with all recommendations, was making progress with her case plan, and was interacting appropriately with Sierra. The Department recommended Sierra be returned to Mother's home and that family maintenance services be provided, if Mother's most recent drug test indicated she had not taken any unauthorized drugs.

B. Sibling's Juvenile Case

At the time of Sierra's January 4, 2005, disposition hearing, a case regarding her brother, Sean, was also pending in the juvenile court. Sean's file indicated that the Santa Clara County Social Services Agency filed a juvenile dependency petition in August 2003, alleging that Mother had failed to protect Sean. According to the petition, which was later amended, Sean had been placed in protective custody after Mother was admitted to Emergency Psychiatric Services for attempting suicide by placing a knife to her stomach and shutting herself in her bathroom. She told a social worker she had been hospitalized five times for suicide attempts. She had a history of using methamphetamines. Her live-in boyfriend, Kevin M., had a criminal record that included kidnapping, rape, forcible oral copulation, and burglary; and he had recently been arrested for domestic violence against Mother. A jurisdiction/disposition report filed on October 10, 2003, indicated there had been several child welfare referrals, beginning the day after Sean was born. The referrals had involved reports of emotional and physical abuse, including poor interactions with Sean, threats to put him under water or bury him, screaming at him, beating him, dropping him, and neglecting his care. At times, the home was found to be unkempt. The report also noted Mother's history of abusing methamphetamines and alcohol, her mental illness, her failure to take her psychotropic medications, her history of suicide attempts, and Kevin's violence toward her and Sean. The Santa Clara County Juvenile Court found the allegations of the amended petition true.

A psychological evaluation prepared in Sean's case concluded Mother suffered from bipolar disorder, alcohol and amphetamine dependence in partial remission, and other disorders; and that her disorders made her unable to utilize reunification services or care for her son within the time available. A second evaluation concluded Mother suffered from depressive disorder, alcohol and methamphetamine abuse in remission, attention deficit disorder, and other disorders; that it was highly unlikely she would experience improved long-term functioning and emotional stability; and that she could not benefit from additional reunification services due to the severity of her mental disability.

Based on the psychological evaluations, the Santa Clara County Social Services Agency filed a petition in Sean's case pursuant to section 388 in January 2004, seeking to bypass reunification services to Mother. A disposition report recommended that reunification services for Mother be terminated and noted that Sean had been diagnosed with attention deficit disorder.

Sean's case was later transferred to Contra Costa County, where Mother was living. The Department prepared an addendum report in July 2004, asking that the section 388 petition be dismissed and that Sean continue as a dependent of the court in out-of-home placement with reunification services for Mother. According to the report, Mother had moved to a more appropriate residence with Sierra; she was completing a substance abuse treatment program; and she was participating in an outpatient treatment recovery program, which included domestic violence prevention, parent education, a women's issues group, alcohol and drug education and therapy, an interactive parent-child program, relapse prevention, and individual therapy. All of Mother's drug tests had been negative, except one taken after she had been prescribed Vicodin for pain management after dental work. Mother had been receiving voluntary family maintenance services for Sierra, and was in compliance with her case plan. The report noted that Mother could be overwhelmed by the challenges of Sean's special needs and behavior, which included angry and aggressive outbursts, but concluded that reunification with Sean was likely in the next six months.

The juvenile court continued Sean in out-of-home placement, continued reunification services, and authorized him to have consecutive overnight visits with Mother. In August 2004, the Department recommended that Sean be returned to Mother's custody under the Department's supervision.

Sean was removed from Mother and placed in a foster home in October 2004, after the incident in which Mother injured his wrists. A November 2004 status review report noted that Sean had spent two days in Contra Costa County Medical Center's Emergency Psychiatric Services unit because of his aggressive kicking, hitting, and biting others.[3] The report described Sean as having severe behavioral problems and targeting small children. When placed in his room for a time out, he would bang his head against the wall, and he had kicked holes in the wall. Mother reported that Sean had broken her finger during one incident. In the weeks after being removed from Mother's home in October 2004, Sean was removed from four foster homes, on at least three of those occasions due to his aggressive behavior. The report noted that Mother had completed her outpatient treatment; that her current drug tests had been negative; that she had not provided verification of her attendance at Alcoholics and Narcotics Anonymous after the end of July 2004; and that her therapy had been reduced from weekly to monthly visits due to Mother's â€