Shanna P. v. Super. Ct.
Filed 8/1/07 Shanna P. v. Super. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SHANNA P., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest. | F052820 (Super. Ct. No. JJV061179A) O P I N I O N |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Charlotte Wittig, Referee.
Shanna P., in pro per., for Petitioner.
No appearance for Respondent.
Kathleen Bales-Lange, County Counsel and Konstantine Demiris, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
____________________
*Before Vartabedian, A.P.J., Levy, J., and Cornell, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing[1]as to her daughter L. We will deny the petition.
STATEMENT OF THE CASE AND FACTS
In September 2006, the social services agency (agency) detained newborn L. after petitioner tested positive for cocaine. This was not the first time petitioner, then homeless and drug-addicted, had lost custody of a child. She voluntarily relinquished custody of her 12-year-old daughter to relatives because of her drug use.
The juvenile court adjudged L. a dependent of the court and, in October 2006, ordered petitioner to complete psychological and substance abuse evaluations as well as a parenting class and submit to random drug testing. The court granted the agency discretion to arrange visitation and set an April 2007 six-month review hearing.
Despite the courts offer of services, petitioner made no effort to utilize them until February 2007. Only then did she enter drug treatment, enroll in a parenting class and begin drug testing. Petitioner waited until the end of March to undergo a psychological evaluation and she visited L. a sum total of three times in February and March. L., meanwhile, was bonded to her foster parents who wanted to adopt her. In light of the circumstances, the agency recommended the court terminate reunification services at the six-month review hearing and set the matter for permanency planning.
On May 1, 2007, the juvenile court conducted a contested six-month review hearing. Petitioner testified, admitting her continued drug use caused her to delay initiating services. Nevertheless, she claimed three months of abstinence and a willingness to participate in any services offered to reunify with L.
Following petitioners testimony and argument, the court found petitioner had only begun to participate in services and had not made substantial progress in her court-ordered treatment plan. In addition, the court, based on argument by minors counsel, found visitation would be detrimental. Consequently, the court terminated petitioners reunification services and visitation and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues trial counsel was ineffective for not introducing evidence of her significant progress. Consequently, continued services were warranted and the juvenile court erred in terminating them. We disagree.
A petitioner asserting ineffectiveness of counsel must prove trial counsels performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsels performance if petitioner fails to prove prejudicial error; i.e., absent counsels errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show evidence existed, which trial counsel failed to produce, that would have compelled the juvenile court to continue reunification services.
Generally, reunification services are limited to six months in cases such as this where the child was under the age of three years when removed from parental custody. (361.5, subd. (a)(2).) The purpose of the six-month limitation on services is to provide the juvenile court greater flexibility in meeting the needs of young children where the [parent has] made little or no progress in [his or her service plan] and the prognosis for overcoming the problems leading to the childs dependency is bleak. (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611, 612.) Consequently, the juvenile court may schedule a selection and implementation hearing under section 366.26 on the six-month review date if it finds by clear and convincing evidence the parent failed to participate regularly and make substantive progress in reunification services unless the court finds a substantial probability the child may be returned to parental custody within another six months. ( 366.21, subd. (e).) If the court finds a substantial probability of return, it must continue services to the 12-month review hearing. (Ibid.)
In order to find a substantial probability of return, the court must make a three-fold finding: (1) the parent regularly visited the child; (2) the parent made significant progress in resolving the problem prompting removal of the child; and (3) the parent demonstrated the capacity and ability to complete the objectives of the case plan and provide for the childs safety, protection and well-being. ( 366.21, subd. (g)(1).) We review the juvenile courts order terminating reunification services to determine if it is supported by substantial evidence. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 316.)
Petitioner does not specify what additional evidence trial counsel could have presented that would have compelled a different outcome in this case. Further, based on the record, the strongest evidence in petitioners favor was the evidence trial counsel elicited from her; i.e. she demonstrated three months of sobriety and compliance during the latter half of the six-month reunification period. Without more and given petitioners long history of drug use, the court properly found petitioner failed to regularly participate and make substantive progress in her court-ordered services.
Further, there is no evidence to support a substantial probability L. could be returned to petitioner after another six months of services. Petitioner had no contact with L. for four months and then only visited her three times. As a result, there was no parent/child bond and, according to the record, those three visits appeared to agitate L. That evidence coupled with only three months of sobriety militate against finding a substantial probability of return.
On this record, we conclude trial counsel was not ineffective and the juvenile court properly terminated petitioners reunification services. Accordingly, we will deny writ relief.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
