Bobbi B. v. Superior Court

Filed 4/28/06 Bobbi B. v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Bobbi B., in pro. per., for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel, and Howard K. Watkins, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner in pro. per. seeks an extraordinary writ (Cal. Rules of Court, rule 38) to vacate the orders of the juvenile court issued at the six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1] We will deny the petition.^[2]

STATEMENT OF THE CASE AND FACTS

In June 2005, the Fresno County Department of Children and Family Services (department) took petitioner's three children ranging in age from six years to five months into protective custody because petitioner was incarcerated on petty theft charges and her boyfriend, with whom she left the children, could not provide adequate care for them. The juvenile court ordered the children detained pursuant to a dependency petition and they were placed as a sibling group in licensed foster care.

At the dispositional hearing, the court sustained the petition and ordered petitioner to complete a parenting program, substance abuse, mental health and domestic violence assessments and follow any recommended treatment and submit to random drug testing. The court also ordered the two oldest children into therapy and set the six-month review hearing for December 12, 2005.

Petitioner completed a substance abuse assessment while in county jail and was recommended for inpatient drug treatment upon her release scheduled for August 25, 2005. By participating in drug treatment, petitioner would also be able to complete her other court-ordered services.

As planned, petitioner was released on August 25, 2005, and admitted directly into inpatient drug treatment. However, she left the program on September 11, 2005, and was arrested the same day.

In its six-month status report, the department recommended that the court terminate petitioner's reunification services and proceed to permanency planning. At the time, she had not been sentenced in her criminal case and so her sentence was unknown. However, the department reported the children were doing well with their foster parents who wanted to provide a permanent home either through adoption or legal guardianship. At petitioner's request, the department was also evaluating petitioner's mother and sister who live in Florida for placement.

On January 25, 2006, petitioner appeared at the six-month review hearing represented by counsel. She submitted on the department's recommendation, expressing her understanding that by doing so she was forfeiting her trial rights and reunification services. Consequently, the juvenile court terminated petitioner's reunification services and set a section 366.26 hearing for May 24, 2006.

DISCUSSION

Petitioner does not dispute that she forfeited her right to reunification services by submitting on the department's recommendation. Rather, she claims trial counsel was ineffective because he told her she had to submit.

A petitioner asserting ineffectiveness of counsel must prove trial counsel's performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) However, we need not evaluate counsel's performance if petitioner fails to prove prejudicial error; i.e., absent counsel's 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 that but for counsel's advice that she submit on the department's recommendation, the juvenile court would have continued reunification services. We conclude she did not make the requisite showing.

The juvenile court's decision to continue reunification services at the six-month hearing when dealing with a sibling group is part statutorily mandated and part discretionary. If the court finds by clear and convincing evidence that the offending parent failed to regularly participate in a court-ordered treatment plan, the court may terminate services and schedule a permanency planning hearing unless the court finds that the offending parent was not provided reasonable services or that there is a substantial probability that the children may be returned to parental custody within another six months. (§ 366.21, subd. (e).)

Petitioner indirectly challenges the reasonableness of services provided to her. She claims, without citation to the record, that she completed a mental health evaluation and received a â€