Annetta B. v. Super. Ct.

Filed 10/23/07 Annetta B. v. Super. Ct. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Petitioners Annetta B. and Eugene W. are the mother and father of Tanisha B., Tyree W., and Taya B., dependent children of the juvenile court. A fourth child, Tavares, is not involved in this case. Pursuant to rule 8.452 of the California Rules of Court, the parents filed writ petitions seeking review of the juvenile courts order terminating reunification services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26.^[1] After considering the petitions under rule 8.452(i)(1) of the California Rules of Court, we will deny them.

FACTS

We take the facts from the record of the cause before us and from the record in In re Tanisha B. (H030774) dismissed February 27, 2007. Real party in interest, the Santa Clara County Department of Family And Childrens Services (the Department), asked us to take judicial notice of the record in Case No. H030774, and we granted the request.

Tanisha is in her mid-teens, Tyree is 13 years old, and Taya is eight. (We will sometimes refer to Tanisha, Tyree, and Taya collectively as the children.) The children grew up in a family that has been the subject of multiple dependency petitions.

At issue here is the status of the children following the latest dependency petition, which was filed on July 1, 2005. Eugene W.s physical abuse of Annetta B. (and on one occasion physical abuse of Tanisha) and Annetta B.s substance abuse and mental health problems precipitated the latest round of dependency proceedings. The Department filed a petition alleging that the minors fell within the ambit of section 300, subdivisions (b) (failure to protect the minors) and (c) (serious emotional damage). The children were witnessing their father hit their mother: he would wake the children up to watch them fight and would make them choose sides. The mother had recently been placed on a section 5150 hold because she was failing to take prescribed antipsychotic medication and making bizarre utterances. She was also using cocaine.

The juvenile court sustained the dependency petitions and made Tanisha, Tyree, and Taya dependents of the court on July 29, 2005. It ordered Annetta B. to receive family maintenance services and Eugene W. to receive family reunification servicesi.e., for the children to remain in the home with their mother but not their father.

Psychological evaluations of Annetta B. done in September and October of 2005 diagnosed serious problems. These problems continued. In November of 2005 she was placed on another section 5150 hold after she was found in front of her apartment complex yelling and throwing objects. A few days earlier she had ventured onto the grounds of Tanishas school. She went to Tanishas classroom asking for a plant and was seen eating the petals of roses on the campus grounds. She had also assaulted a former child advocate volunteer. She had not attended a psychiatric appointment in four months and was not taking her prescribed medication.

As a result of Annetta B.s conduct, the Departments social worker placed the children in protective custody on November 7, 2005. Tanisha, however, soon ran away from her foster placement and a protective custody warrant was issued for her. She also took Eugene W.s vehicle and hit a parked car. Tanisha said she wanted to live on her own. At age 14 she was sexually active and was considering becoming pregnant because she had heard she could be emancipated from the system if she had her own baby.

On December 20, 2005, the juvenile court sustained, on grounds that the children needed protection in an environment outside the home, a section 387 petition to remove the children from Annetta B.s custody and place them in foster homes. The court ordered family reunification services for Annetta B.

On January 6, 2006, the juvenile court ordered that Eugene W.s reunification services continue. Tanisha was taken to a childrens shelter after police found her in a stolen vehicle.

Eugene W., who had been in jail, was released in January of 2006. Domestic violence between the parents resumed. Annetta B., who had been discharged by her psychiatrist for failing to attend appointments, tested positive for cocaine in March of 2006. On March 24, 2006, the Department filed a section 387 petition to place Tanisha in a community care facility because her absconding warranted a higher level of care and supervision. The juvenile court sustained the petition and Tanisha was placed in the facility, but she soon ran away, and in April of 2006 the Department applied for another protective custody warrant. In the application, the Department alleged that Tanisha had been sexually assaulted twice while on the run and that the San Jose Police Department believed she had engaged in prostitution. The juvenile court issued the warrant on May 3, 2006. On that same day Tanisha was arrested in San Francisco for selling cocaine.

On June 30, 2006, the Department filed another section 387 petition in which it stated that Tanisha had absconded from her latest group home placement on June 27, 2006, and was located at a friends home. On July 3, 2006, the juvenile court sustained the petition.

On July 17, the Department filed an application for an order to have Tanisha detained under section 319, subdivision (b)(3) (leaving a placement in which she had been placed by the juvenile court) and placed in a group home after she returned from running away and was temporarily placed in a childrens shelter. The court granted the application and issued an order on July 18, 2006.

The Department filed a status review report in anticipation of a six-month review hearing for Annetta B., a 12-month review hearing for Eugene W., and a section 387 hearing for Tanisha, all to be held on August 11, 2006. Tanisha remained in her group home and Tyree and Taya (as well as Tavares) were in foster homes. The Department recommended that family reunification services continue for Annetta B., but that Eugene W.s reunification services be ended. Despite its positive recommendation regarding Annetta B., the status review report noted a number of problems. The report stated that Annetta B. had been failing to attend meetings concerning Tanishas issues. Annetta B. took little responsibility for her own actions and often blamed others for the circumstances of her life and was threatening the staff of the Department. She stated that she was still taking her psychiatric medication but was no longer seeing the prescribing psychiatrist. She was not regularly reporting for drug testing and had stopped attending 12-Step classes. Her appearances for substance abuse treatment were sporadic. During the past three months she had not attended individual therapy and was attending group therapy only once a month.

On August 11, 2006, the juvenile court conducted the two review hearings and the section 387 hearing. It sustained the section 387 petition. Annetta B.s reunification services were continued, but Eugene W.s were ended. The court found that Annetta B. had made fair progress in alleviating or mitigating the causes requiring placement, but that Eugene W. had made poor progress.

On September 11, 2006, Tanisha absconded from her placement, and on September 19 the juvenile court issued another protective custody warrant for her.

On October 11, 2006, Eugene W. filed a notice of appeal following the termination of his reunification services. He wrote on his appeal notice that I was in custody on a different matter and was not taken to court the day the order was made. On February 27, 2007, that appeal, In re Tanisha B. (H030774), was dismissed by this court as abandoned.

On March 20, 2007, the Department filed a new section 387 petition regarding Tanisha. This petition was filed because she had been in respite care at a new group home and an order was needed to continue her placement there. On April 13, 2007, the juvenile court sustained the petition.

In April of 2007, the juvenile court was informed that the Department had arranged a trip for Tanisha and her mother to travel to Virginia to identify family members who could potentially support the family in maintaining a stable lifestyle.

For a contested 18-month/permanency review hearing that was eventually brought to trial on July 13, 2007, after at least one continuance the Department filed a report dated May 11, 2007, and an addendum report dated May 25, 2007. The Department recommended that Annetta B.s reunification services be ended and requested a section 366.26 selection and implementation hearing for the children. Tanisha had undergone a psychological evaluation and had been diagnosed with a constellation of serious problems. Although Tanisha denied prostituting herself, she admitted to pimping other girls and selling drugs. She had been arrested several times. And Annetta B. continued to have her own difficulties. When not taking her medication, she would make threatening telephone calls to the social worker assigned to her case and the childrens foster parents. Taya had to be moved to a new foster home in January of 2007 as a result of Annetta B.s threats towards Tayas foster mother. Annetta B. had not attended a psychiatric appointment since February of 2007 and had been dismissed from services provided to her by Catholic Charities, which had included substance abuse treatment and group therapy. She had not submitted to drug testing since January of 2007. She had not supplied any attendance sheets for 12-Step meetings during the past 12 months. She continued to state that she wanted Eugene W. to be present in her life and the childrens lives, and that she did not feel that he posed any danger to the children.

On July 13, 2007, the date set for trial, the parents failed to appear in court. Counsel for Annetta B. expressed bafflement that her client was not present and moved the juvenile court for a continuance. Counsel explained that I did speak with my client yesterday and confirmed that the trial was today at 1:30 in this department and I encouraged her to be here. And I let her know if she was not here, I was not able to proceed without her. She said she would try to be here. And again I stressed that she had to be here. I told her the status of the case and that the department was not recommending the return of her children. I do not know why she is not here, and she would be the only witness that I would have to present evidence to the court. [] . . . [] I did get a chance to speak with [Annetta B.] yesterday and she informed me that the father [Eugene W.] would not be here today. . . . [S]he has been very clear . . . that she disagrees with the recommendations and that she wants her children returned to her care. If she were here today, I am sure that she would testify. Since she is not, I do not have any evidence to provide to the court.

Counsel for Eugene W. told the court that this matter was originally scheduled on the uncontested calendar. . . . My office sent [Eugene W.] a letter and left a message for him and I believe gave him this court date, as well we did on June 22nd. We were successful in advising him [that] today would be the day for the 18[-]month review for the trial for [Annetta B.s] services. He is not present again today. I dont believe a further continuance would allow me anything additional, in terms of trying to get him to appear in court this afternoon. We just note for the court that his services were previously terminated. There are no changes to his visitation. With that, I would have no additional comments on the recommendation.

The juvenile court denied the motion of Annetta B.s counsel for a continuance.

The Department submitted the matter on its reports. The juvenile court adopted the recommendations and ended the mothers reunification services, setting a section 366.26 hearing for the parents, which the court ordered to be held on November 2, 2007.

DISCUSSION

I. Whether Only Tanishas Dependency Should Be Considered

As mentioned, Annetta B. and Eugene W. are the parents of three children who are involved in the dependency proceedings herein: Tanisha, Tyree, and Taya. A fourth, Tavares, is not involved in these proceedings. The parents Notice[s] of Intent to File Writ Petition, however, name only Tanisha and list only Tanishas superior court case number. The same is true of the headings of the parents petitions. In the petitions, however, Annetta B. also names Tyree and Taya, and Eugene W. also names Tyree, Taya, and Tavares. Because the parents notices of intent to file writ petitions and the headings of those petitions refer only to Tanisha, the Department requests that we consider only Tanishas case.

Except with regard to Tavares, who is not part of these proceedings, we decline to do as the Department requests; instead, we will consider the parents allegations regarding Tyree and Taya as well as Tanisha. The documents submitted by the Department that led to the juvenile courts order to end reunification services and set a date for a section 366.26 hearing have a header caption labeled Tanisha [B.], et al., with Tanishas juvenile court case number, JD04166, although the body of the documents discusses the circumstances of the three children involved in these proceedings and recommends setting a section 366.26 hearing with regard to all of them. It appears to us that the parents, in their petitions, followed the pattern of the Departments documents. We cannot fault the parents for doing so.

II. The Petitions Are Without Merit

The writ procedure outlined in section 366.26, subdivision (l) and implemented in [rule 8.452 of the California Rules of Court] enables a party . . . to obtain expeditious review of the findings and orders of the juvenile court in setting a section 366.26 hearing. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811 [referring to a former version of the rule].) Trial counsel is not required to file, and indeed must not file, a writ petition if counsel believes it would be meritless. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583-584.)

When a rule [8.452] petition is filed, . . . it is the obligation of the attorneyor, by extension, the partyto comply with section 366.26, rule [8.452,] and case law describing the requirements for an adequate petition. Accordingly, the petition must be timely filed (rule [8.452(c)]); be accompanied by an adequate record [see generally rule 8.452]; summarize the factual basis for the petition, provide references to specific portions of the record, their significance to the grounds alleged, and disputed aspects of the record, and attach points and authorities [see now rule 8.452(a), (b) [to same effect]]. . . . [T]he points and authorities must, at a minimum, adequately inform the court of the issues presented, point out the factual support for them in the record, and offer argument and authorities that will assist the court in resolving the contested issues. (Glen C. v. Superior Court, supra, 78 Cal.App.4th at p. 583.)

Annetta B.s and Eugene W.s writ petitions fall short of the foregoing body of requirements.

Annetta B. alleges that my kids were not present at the hearing at which the juvenile court ordered her reunification services to be ended. Two were out of state and my oldest daughter[, Tanisha,] who rea[l]ly wanted the judge to know how she felt was told it was not man[d]atory for her to be there. [] Plus I would like to hear from the Judge what else I must do or complete to have my kids come home, with extra time allowed to compensate for a disability. Annetta B. also alleges that she did not fail a test for the presence of cocaine and has a cult[ur]al difference with her social worker. She would prefer to be assigned a social worker who is African-American or who acts like they want me to have my kids back.

Eugene W. states that on the day of the tr[ia]l my kids were not present. [Two] of them were out of state on vacation with the[ir] foster parents, and one [Tanisha] was told that it was not man[da]tory that she be present at the tr[ia]l[. T]he main reason we asked for a tr[ial] in the first place was so that our kids could be heard[. T]hey have a lot of issues that they would like the court to know [about], and it[]s the kinda stuff that the soc[ia]l worker would not put in her report, because it would make her look . . . real bad . . . . [A]nd trust me there is . . . a whole lot more to be told[.]

We find the petitions to be without merit. The judgment or order of a lower court is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The juvenile court was aware of the familys situation and considered the childrens interests in setting the section 366.26 hearing. The children were represented by counsel at the July 13, 2007, trial, and their counsel explained that the children have always wanted to return home to their mother, but in the absence of any evidence that it would be safe to do so, . . . I could not advocate for that and would be submitting it. Moreover, in light of this record, which shows that, without advance excuse or justification, neither parent attended or made an effort to secure the childrens attendance at the hearing, the parents cannot complain about the childrens failure to attend the hearing after the fact.

Fairness to the parents does require us to note that at a hearing on May 25, 2007, to consider setting the matter for trial, Annetta B. and all three children were present. The juvenile court set a trial date for the afternoon of June 22, 2007. Counsel for the Department sought and apparently received (the record is unclear on the latter point) an order permitting Tyree W. and Taya B. to travel with their foster parents to North Carolina from July 12 to July 23. The trial was later continued, however, to July 13, 2007, which suggests that, as the parents allege in their writ petitions, Tyree and Taya were not present because they were traveling out of state. But the parents allege no satisfactory explanation for Tanisha B.s absence. They allege that she did not appear because it was not mandatory, but also allege inconsistently that Tanisha wanted to attend court to tell her story. And counsel for Annetta B. stated that her sole witness was to be Annetta B. herself, and not her children. Counsel for Eugene W. implied the same regarding him.

Under the circumstances, we assign little weight to Tyrees and Tayas absences. Their personal appearances in court do not seem to have been of consequence to the matters the juvenile court was called upon to consider.

CONCLUSION

Each parents writ petition is denied.

______________________________________

Duffy, J.

WE CONCUR:

______________________________________

Elia, Acting P. J.

______________________________________

McAdams, J.

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