Filed 5/24/22 In re O.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

D.B. (Father) is the presumed parent of minor child O.B., born in 2015. The trial court sustained a petition filed by the Santa Cruz County Human Services Department (the Department), alleging that O.B. came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1) and (b)(2).[1] At the jurisdictional and dispositional hearing, the court placed O.B. with the Department and ordered supervised visitation for both D.B. and O.B.’s mother, N.B. (Mother).

On appeal Father contends the trial court erred in removing O.B. from Mother, claiming there is not substantial evidence to support the disposition order and that the trial court violated his due process rights at the hearing. Father also claims he received ineffective assistance of counsel. Concluding that the trial court did not err, and that Father has failed to show prejudice resulting from any ineffective assistance of counsel, we will affirm the trial court’s orders.[2]

I. Factual and Procedural Background

In June 2021, based on the results of a parole search of Father and Mother’s residence, the Department filed a juvenile dependency petition, alleging that O.B. came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b)(1).[3] The following evidence was presented to the trial court at the proceedings attendant to the Department’s petition and subsequent investigation.

1. Mother and Father’s Prior History

The Department investigated reports concerning Mother and Father in 2017 and 2019. In March 2017, Father brought O.B. with him to meet his probation officer and disclosed that he had been using methamphetamine and heroin for several days, and had used methamphetamine the prior night. Father tested positive for heroin, cocaine, and methamphetamine. He had driven himself and O.B. to the probation meeting. The reporting party stated that Mother left O.B. with Father while she worked, despite knowing about his drug use. Mother indicated that she did not know of Father’s drug history until she was pregnant with O.B. The social worker opined that Mother “consistently enabled [Father’s] behavior by minimizing his drug problem, and allowing him to still live in the home knowing that he is using drugs and not working,” and described Mother as “very codependent.” The social worker explained to Mother “ways to mitigate the concerns multiple times in the investigation,” but “the concerns remain[ed] the same[,]” despite Mother’s assertions that she understood the danger to O.B. Father denied being under the influence to the social worker. The Department determined that the allegation of general neglect of O.B. by Mother and Father was substantiated, while the allegation of severe neglect by Father was inconclusive. Mother signed a safety plan agreeing that Father would not be unsupervised around O.B. during the investigation. The Department referred both parties for drug testing, and referred Father to a substance use disorder assessment.

In July 2019, Father presented to two different emergency rooms complaining of “worms coming out of his mouth” and “ ‘bugs in his skin.’ ” The first reporting party indicated Father was “nervous, anxious, and presumed to be high.” The second stated he “appeared to be delusional” and expressed concern that Father would injure O.B. Father denied having relapsed, yet Mother made arrangements to keep O.B. from Father’s care. Seven days after the initial report, Father tested negative for all substances. The social worker learned that Father was participating in outpatient treatment on a weekly basis. The Department determined that the allegation of general neglect against Mother was unfounded, while the allegation against Father was inconclusive. Mother agreed to a “verbal safety plan that she will have a sober and safe adult care for [O.B.] while [Mother] is at work,” and Father was referred for drug testing.

The parents’ criminal history revealed that Mother had one misdemeanor conviction in 2003 for possession of unlawful paraphernalia, possession of a controlled substance, and fighting in public. Father had a criminal history with numerous misdemeanor and felony drug related offenses dating from 2014, some resulting in prison commitments. Father was on post release community supervision (PRCS) in June 2021.

2. The June 2021 Incident and Initial Detention Hearing

On June 2, 2021, deputies from the Santa Cruz County Sheriff’s Department responded to Mother and Father’s home. The resulting police report indicated that the responding officers found marijuana in the upstairs living area; used needles, foil with heroin residue lines, and a baggie containing methamphetamine in Mother and Father’s bedroom; a needle and methamphetamine in the toilet of the parties’ bathroom; and used needles in that bathroom. The officers also reported that there was no food in the refrigerator, which had a foul odor, and the house was “a mess.” One of the responding officers reported that Mother admitted that she had smoked methamphetamine the previous night, despite initially denying that she was using drugs. The officer stated that Mother “admitted that she relapsed about a month ago.” The officers placed the children on a section 300 hold and contacted the Department. Father was arrested and charged with possession of a controlled substance, cultivation of marijuana, possession of paraphernalia, and willful cruelty to a child, as law enforcement found drugs and paraphernalia that were accessible to O.B.

The social worker arrived at the home as the children[4] were being placed in protective custody. She reported that the home looked unkempt. She observed a needle in the toilet, a pipe, foil and a needle on the bathroom counter, and a drug pipe on the ground of the bathroom next to the living room. In O.B.’s bedroom she observed “what looked like blood stains on [O.B.’s] bed.” In the upstairs den, the social worker saw “many needles in a container and a bin half full of marijuana.” She also found children’s toys on the second floor of the home. The social worker reported that the needles, drug pipes, and marijuana were all within O.B.’s reach. “The kitchen was a mess, dishes were piled up on the sink, and the food packages on the counter. Although the fridge contained food, it appeared to be moldy food and had a strong foul order [sic].” The social worker found O.B. to be “in good spirits” with “no visible marks or bruises. . . .”

The social worker spoke with Mother by telephone on the day of the incident. Mother denied that there were needles everywhere in the home. She indicated that the children were not allowed upstairs, and that she generally did not go up there either, stating that she and Father had an agreement that they “just don’t go in each other’s stuff.” She denied that the substance the social worker saw on O.B.’s bed was blood. She stated that O.B. had been eating strawberries and cherries on her bed. She explained that the food in the refrigerator was moldy because the parties stopped using the kitchen refrigerator as the sink in the kitchen was not working, preventing them from washing dishes there. The parties instead kept food in a refrigerator in their bedroom.

The social worker asked Mother to submit to drug testing. Mother stated she would take the bus to do so. Mother claimed that she was six years sober from drugs, and that she stopped drinking a year prior. Mother did not have a sponsor and had never participated in a program. She got sober “because she wanted something different for her life.” Mother opined that any drug test she took would not “come back positive with anything.” Mother agreed to call for drug testing every morning for the next two weeks. The next day, Mother texted the social worker stating that the bus did not arrive, and that she thus was not able to test.

Regarding Father’s drug use, Mother stated Father was sober when they met, at which time she did not know of his history with substance abuse. Father began using heroin “behind [Mother’s] back” while she was pregnant with O.B. Mother left Father when she discovered his drug use, moving from Palm Springs to Santa Cruz to live with her father. Father got sober before O.B.’s birth, and moved to Santa Cruz to live with Mother. Mother then described a repeating pattern wherein Father would relapse, she would separate from him, and the parties would reunite when he was sober. Mother claimed that she now intended to separate from Father again. She discovered a needle in Father’s clothes while doing laundry a month and a half before the incident. When confronted, Father said it was an old needle. Two weeks before the incident, Father “stopped hiding the fact he was using from her. She found foil and a pipe in his drawers.”

While Mother denied that Father ever used around O.B., she could not say whether or not he was ever under the influence in O.B.’s presence, although she claimed Father was never alone with O.B., and O.B. never went into the garage where Mother saw Father using methamphetamine. When Father admitted he was using again, Mother determined she would move with O.B. to Oregon, while Father remained in Santa Cruz to rehabilitate. She suggested that Father originally planned to move to Oregon with the family, but that plan changed once Mother discovered that Father had relapsed again. Although Mother stated that she was “done” with her relationship with Father, she added, “if he gets sober, completes the program, and gets therapy, then I don’t know, we will discuss the relationship.”

The social worker spoke with O.B.’s maternal grandmother, who indicated that the parties’ home was “always a mess, drug free or not drug free.” She was not surprised to learn about the June 2021 incident, as she was aware Father “had drug issues in the past,” commenting that “ ‘he is the type of person where if there is [sic] drugs around, he will use them.’ ” She knew that Mother used methamphetamine when she was in her early 20s, but believed Mother was currently sober.

A social work supervisor spoke with O.B. on the day of the June 2021 incident. When asked what happened at her home, O.B. stated, “My dad went to jail again today . . . he’s been there a lot.” She could not say why he was in jail. O.B. also told the supervisor, “The police think my mom sells drugs but she’s never sold drugs.” The supervisor noted that O.B.’s clothes were “relatively clean . . . but her face, hair, hands and fingernails were dirty.” O.B. declined later attempts by the social worker to discuss the incident.

Based on the police report, the social worker’s observations, and the interviews with Mother and maternal grandmother, the Department submitted a report to the trial court recommending supervised visitation for both parents, as well as drug/alcohol assessment, treatment and testing, parenting classes, and individual/family counseling. The social worker determined that the risk factors leading to O.B.’s removal were “general neglect” and “unsafe/unhealthy home,” and that the “overall risk rating” was “high.” At the detention hearing in June 2021, the trial court found that the Department made a prima facie showing that O.B. came within section 300, and that detention of O.B. was necessary because there was a substantial danger to her physical or emotional health, and there were no means to protect O.B. without removing her from her parents’ custody.

3. Subsequent Proceedings Prior to the Jurisdictional/Dispositional Hearing

When the social worker spoke with Father he admitted that he “was in the middle of ‘shooting up heroin’ ” when the sheriff’s deputies arrived at the home. He threw the needle he was using into the toilet, and removed other paraphernalia from his pockets, putting it on the counter. Father claimed he did not normally use drugs in the house, but rather he used them in the garage. He admitted that there were two brand new needles in a package on the parties’ bed, but denied the report that there were hundreds of needles on the bed. Father stated that he had a “trunk of needles upstairs,” in an area where the children did not go. When asked about children’s toys that the social worker saw upstairs, he indicated that he would take toys from O.B. and put them upstairs, and sometimes the family dog would bring toys upstairs. Father admitted to possessing marijuana in a cabinet in his room, which he believed was legal, and indicated that O.B. was not left alone in the room without her parents. O.B. knew she was not allowed to be in the room by herself and/or access the cabinet. Father also admitted to growing marijuana in a separate building on the property, claiming that O.B. did not have access to the building.

The social worker asked Father to submit to drug testing. He agreed but indicated he would likely have heroin and crystal methamphetamine in his system. He began using marijuana and crack cocaine when he was 14 or 15 years old. Starting at age 20, Father was in prison on and off for about 10 years, during which time he was able to get sober. He started using prescription opiates when he was 31, and “within a year he began shooting up.” Father last relapsed about a month and a half before the June 2021 incident. He denied being around O.B. while under the influence. He admitted to having a drug problem, and stated his plan moving forward was to reestablish his sobriety and regain custody of O.B.

After learning from one of the responding officers that Mother admitted that she relapsed a month before the June 2021 incident and had used methamphetamine the night before the incident, the social worker conducted an additional interview with Mother. Mother stated, “I was totally freaked and scared, every time I told him that I didn’t use, he would yell at me and call me a liar. Black people are getting shot at. I told him what he wanted to hear to stop being angry with me. I was scared, very scared, he was very mean. He threatened to arrest us if we cried when [the] kids were taken away.” Mother reiterated that she was sober and did not have a drug problem. The social worker also questioned Father about Mother’s substance use history. He stated, “[Mother] doesn’t do drugs; she has never done drugs.”

Two weeks after the June 2021 incident, the social worker spoke with the representative from the location where both Mother and Father were required to do drug testing. On June 7, 2021, Father tested inconclusive for amphetamines, methamphetamines, opiates, and ecstasy. Father failed to show on June 11 and June 15. Mother had tested four times, and failed to show three times. The sample collected at the first testing visit was not sufficient to send to the laboratory. Mother tested negative the second visit. On the third testing visit, the test initially came back as inconclusive for methamphetamine, but was negative after being sent to the lab. The results from the fourth test had not yet come in. When the social worker followed up with the testing facility on June 24, 2021, Father had still only tested one time, on June 7. Mother had an additional negative test on June 17.

On June 22, 2021, the social worker contacted the specialist assigned to assess Father’s substance use disorder. The specialist stated he had left several messages and texts for Father but had not heard back from him. By June 24, the specialist had been in touch with Father, and on June 25, Father reported to the social worker that the specialist was assisting him on getting into a residential drug treatment program.[5] Father also claimed at that time that he had tested twice, indicating that he probably tested positive for heroin and methamphetamine, which he had last used three to four days before the interview. The social worker told Father there were concerns that he was “nodding off” at both a recent visit with O.B. and a recent video Child Family Team meeting. Father denied being under the influence of substances, claiming that he was tired from moving out of his home. The visitation supervisor reported that Father became more engaged with O.B. after she asked Father about nodding off.

Mother was also assigned a specialist to assess her substance use disorder. As of June 23, 2021, Mother had not been in contact with the specialist, despite the specialist’s several attempts to reach Mother. The specialist was aware that Mother had communicated with someone from Family Preservation Court and expressed desire to join that program. On the same day, June 23, Mother failed to appear at a scheduled appointment with the social worker. Mother later explained that she had lost her phone and did not have a ride to the appointment. On June 24, 2021, Mother reported to the social worker that she had an appointment with the specialist scheduled for June 28. She had moved in with her father and stated that she and Father were no longer in a relationship. Mother expressed desire to participate in Al-Anon meetings and stated she would begin Family Preservation Court the next week.

The social worker conducted an additional in-person interview with Mother and Father prior to submitting the jurisdiction/disposition report to the court. Father again denied that there were needles on his bed. He admitted to keeping needles in a bag under the sink and stated that O.B. was not allowed in either the bedroom or the bathroom. Father claimed that the marijuana found at the home was packaged for preservation, not for sale, and that it was CBD, which he kept stored “inside two box springs that were back to back.” Father denied selling drugs. Mother reported that there was a baby gate in the stairway to keep O.B. from accessing the upstairs area of the home. She claimed that neither she nor O.B. went upstairs or into the garage, as those were “[Father’s] area.” Mother claimed the sheriff’s deputies saw her feed O.B., and that she had a “cupboard full of food at home.” Mother denied that either she or Father had ever sold drugs. Father packaged CBD “to preserve it.”

The court scheduled the jurisdiction/dispositional hearing for July 2021. In its jurisdiction/disposition report, the Department recommended that O.B. remain in out of home care and that reunification services be provided to both Mother and Father. Although Mother had provided some negative drug tests, the Department was “concerned that she is not being forthcoming about her substance use due to her past substance use history, admitting to Deputy Redwick that she relapsed, and failing to test 3 times at Doctors on Duty, thus leaving [O.B.] at substantial risk of harm. In the past, when [Father] relapsed, [Mother] stated that she would leave the relationship with [O.B.]; however, during [Father’s] current relapse, [Mother] was aware and/or had suspicion he had been using for a month and a half, and did not remove herself and [O.B.] from the situation. Further, she stated she was unable to recognize whether or not [Father] was under the influence of substances when he was around [O.B.], which causes immediate danger to [O.B.’s] safety.”

With respect to Father, the Department noted his self-disclosed drug use, and “the long term nature of his substance abuse.” Father’s sobriety could not be determined because he had not completed his substance use disorder assessment and had only tested once, which had proved positive for controlled substances. Despite its recommendation, the Department stated it was hopeful the parents would “fully engage and utilize [services] . . . to address the concerns and demonstrate their ability and willingness to safely parent and support [O.B.]” It included a proposed case plan with the report. The Department’s assessment also attached the police report, as well as the social worker’s narrative report.

Shortly before the hearing, the Department submitted a supplemental report, consisting of an email from Father addressed to the court. Father admitted that he was in the middle of a relapse and recognized that O.B. could have been injured by the “risk” he “brought . . . into the house.” Father disputed the contention that there were “a hundred needles on [his] bed,” or that there was no food in the house, although he conceded that there were leftovers in the refrigerator that he should have thrown away. He recognized that O.B. was suffering because of the situation. He informed the court that he would be entering the residential treatment program shortly. Father also confirmed that Mother said she would take O.B. if he “start[ed] to get back to [his] old habits,” and that the plan was for O.B. to move to Oregon. Father asked the court to return O.B. to Mother, stating that Mother does not do drugs.

4. The Jurisdictional/Dispositional Hearing

At the July 8, 2021 hearing, both Father and Mother submitted to the trial court’s jurisdiction and disposition based on the petition and the social worker’s report. Father filed the mandatory Judicial Council form waiver of rights, initialing the provision that he was giving up his right to “cross-examine witnesses, the social worker or probation officer who prepared the report, and the persons whose statements are contained in the report.” Prior to submitting at the hearing, Mother reported that she was participating in the case plan outlined by the Department, including the substance abuse assessment and testing, and that all of her drug tests were negative. Father indicated that he had also completed his substance abuse assessment, as a result of which he was going into the residential program later that day. He also reported his intent to continue working on the case plan. The court confirmed that it received and considered the jurisdiction/disposition report, as well as the supplemental report containing Father’s email to the court.

In issuing the jurisdiction order, the court stated it was making the order based “on the evidence before the Court, which is the detailed Jurisdiction and Disposition Report.” It sustained the petition, finding that the allegations in the petition were true and that O.B. was subject to the court’s jurisdiction under section 300, subdivision (b) by a preponderance of the evidence.

In addressing the dispositional order, the court stated, “I have already noted the findings and evidence that the Court has reviewed and continuance of [O.B.] in the home of parents is contrary to welfare. Reasonable efforts were made to prevent or eliminate the need for removal.” The court placed O.B. with the Department, finding the placement “necessary and appropriate by clear and convincing evidence. It was necessary for [O.B.] to be removed from the physical custody of [Mother and Father], due to substantial danger to her physical or emotional health and well being.” The court determined that both parents had made “minimal progress towards alleviating or mitigating the cause of removal.” It ordered reunification services for both parents, finding that the previously created case plan was appropriate, and authorized the parents to have supervised visitation with O.B., subject to the Department’s discretion. It set a six-month review hearing in December 2021.

Father timely filed a notice of appeal, seeking review of the June 7, 2021 detention order, and the July 8, 2021 jurisdiction and dispositional orders (case No. H049268).

II. Discussion

Father contends the trial court erred when it ordered O.B. removed from Mother at the July 2021 hearing. He argues there is not substantial evidence supporting the dispositional order, that the trial court violated his due process rights, and that he received ineffective assistance of counsel.

1. Mootness

The parties agree that in January 2022, the trial court ordered O.B. returned to Mother. In asking this court to take judicial notice of the trial court’s January 2022 order, the Department indicated it intended to argue that Father’s challenge to the order removing O.B. from Mother’s custody was rendered moot when the trial court returned O.B. However, in its responsive brief, filed after the requests for judicial notice, the Department did not do so.

We agree with Father that the January 2022 order did not render his claim that the trial court erred in removing O.B. moot. Although the child has been returned to Mother’s custody, the July 2021 order could affect future proceedings, such as the length and availability to Father of future reunification services, and future custody and visitation orders. (See In re M.F. (2022) 74 Cal.App.5th 86, 111–112; In re A.R. (2009) 170 Cal.App.4th 733, 740.) As the purported error has the potential to infect the outcome of subsequent proceedings, the issue is not moot. (In re A.R., at p. 740.)[6]

2. Substantial Evidence Supports the Trial Court’s Order Removing O.B. from Mother

Father contends the trial court erred in finding that O.B. would be in danger if allowed to remain with Mother and removing her from Mother’s care. Under section 361, subdivision (c)(1), the court may only remove a child from parental custody upon a finding by clear and convincing evidence that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.” The court is required to “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home . . . . The court shall state the facts on which the decision to remove the minor is based.” (§ 361, subd. (e).)

We review the trial court’s disposition order for substantial evidence, considering whether there is substantial evidence in the record to support the trial court’s findings by clear and convincing evidence that removal was appropriate under section 361, subdivision (c)(1). (In re Ma.V. (2021) 64 Cal.App.5th 11, 24.) “When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012.)

1. The Trial Court’s Failure to Comply with Section 371, subdivision (e), was Harmless Error

Father argues that the trial court did not make specific factual findings when it issued the order removing O.B. from Mother’s custody and thus did not comply with the mandate of section 361, subdivision (e), which requires the court to “state the facts on which the decision to remove the minor is based.”

We agree with Father that the court’s recitation, which consisted of finding the allegations true and sustaining the petition without any reference to the reports or evidence before it, was inadequate to address the statute’s requirements. However, this error does not require automatic reversal of the July 2021 order. “Like other rulings of the trial court, when a juvenile court fails to make the factual findings required under section 361, subdivision (e), its removal order is subject to the constitutional mandate that no judgment shall be set aside ‘unless, after an examination of the entire cause, including the evidence, the [appellate] court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13; [citation].) Under this mandate, a ‘miscarriage of justice’ will be declared only when the appellate court, after examining the entire case, is of the opinion that ‘ “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ [Citation.] A ‘ “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.’ [Citation.]” (In re D.P. (2020) 44 Cal.App.5th 1058, 1068.)

Father contends that, had the trial court considered and stated the facts supporting the removal of O.B. from Mother, there is a reasonable probability the court would have determined that removal was not necessary, given her accomplishments by the time of the hearing.[7] Father cites the following in support of his position: Mother did not have a substantial recent history of drug abuse, was living separately from Father, had completed a substance abuse assessment, and was enrolled in Family Preservation Court.

We are not persuaded. Viewing the record in the light most favorable to the trial court’s order, and giving deference to how the court may have evaluated the credibility of the witnesses and resolved conflicts in the evidence (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011–1012), we determine there is no reasonable probability the trial court would have reached a more favorable result for Father if it had set forth the facts in its order. Father first argues that Mother’s history of drug use was insufficient to support the trial court’s order, as a parent’s substance use alone does not bring a child within the jurisdiction of the dependency court. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1003.) But the evidence presented to the court encompassed much more than Mother’s own substance use history. The greater concern was Mother’s response, both historically and in the instant case, to Father’s continued substance abuse. The evidence demonstrated that she did not appropriately protect O.B. from Father’s drug use. In order to remove a child from parental custody and care under section 361, subdivision (c), the court does not have to find that the child was actually harmed by the parents’ conduct, or that the parents were “dangerous.” “ ‘The focus of the statute is on averting harm to the child.’ [Citation.] The court may consider a parent’s past conduct as well as present circumstances. [Citation.]” (In re N.M. (2011) 197 Cal.App.4th 159, 169–170.)

Both the responding officers and the responding social worker saw drugs and drug-related paraphernalia in the home within the potential reach of five-year-old O.B. The social worker observed a needle in the toilet, a pipe and foil and a needle on the bathroom counter, and a drug pipe on the ground in the house. While Mother and Father claimed O.B. was either not allowed, or not unsupervised, in the areas wherein the drugs and paraphernalia were discovered, there were children’s toys in the upstairs area where the social worker saw a bin full of marijuana, and many needles in a container, supporting a strong inference that O.B. had access to the area, despite the parents’ claim to the contrary. The social worker reported that all of these items were within O.B.’s reach. Father claimed O.B. “knew” that she was not allowed in certain areas of the home. It is reasonable to infer that the trial court determined that a five-year-old child could not be given the responsibility to follow restrictions set by her parents to stay away from unauthorized areas. And, while both parents denied that Father ever use drugs in O.B.’s presence, the record confirms that Father was using heroin while O.B. was present in the home on the day of June 2021 incident, and that he had used in the garage while O.B. was home at other times.

Father contends that Mother took appropriate steps after the incident to protect O.B. by physically separating from Father. But the record reflects Mother’s pattern of physically separating from Father when he relapsed into substance abuse and then reuniting with him once he reported himself sober. By June 2021, Mother had returned to live with Father, placing O.B. where she had access to drugs and paraphernalia. Mother saw evidence of Father’s relapse a month and half before the incident and trusted Father’s denial of drug use despite his known history. Although pure speculation about Mother’s future’s conduct would not be sufficient to support the removal of O.B. (In re Steve W. (1990) 217 Cal.App.3d 10, 12), the court here had sufficient information about Mother’s past conduct to support a reasonable inference that Mother was not properly acknowledging the danger that Father’s conduct posed to O.B., particularly in light of Mother’s admitted inability to discern when or if Father was under the influence of substances. Further, she stated that she would consider reuniting with Father as she had on previous occasions.

O.B.’s comments to the social worker reflected the emotional toll of her parents’ conduct. Despite her young age, she reported to a social worker at the scene that Father was going to “jail again,” and that he had “been there a lot.” O.B. also discerned that the police believed Mother was selling drugs. Mother’s failure to protect O.B. from exposure to Father’s drug use contributed to O.B.’s precocious understanding of the results of drug addiction.

The social worker’s report of her own observations, as well as the evidence gleaned through the social worker’s subsequent investigation, is sufficient to support the trial court’s order removing O.B. from Mother’s care. “The court was entitled to find the social worker’s opinion credible and give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court.” [Citation.] (In re Cole C. (2009) 174 Cal.App.4th 900, 918.) The Department expressed concern that Mother was not forthcoming about her substance use, particularly based on Mother’s past history with drug use, and her failure to fully comply with the drug testing requirements in her case plan. For the foregoing reasons, we conclude there was clear and convincing evidence before the trial court that there was a substantial danger to O.B.’s physical and/or emotional health, safety, or well-being if she was returned to the home.[8] (§ 361, subd. (c)(1).)

Father argues that the evidence does not support the trial court’s finding that “[r]easonable efforts were made to prevent or eliminate the need for removal[,]” as required by section 361, subdivision (e). In its July 2021 dispositional order, the court found that both parents had made “minimal progress towards alleviating or mitigating the cause of removal.” There is substantial evidence in the record to support this finding. Although Mother reported to the social worker at the time of the incident “that she was willing to comply with anything the Department asked of her[,]” during the period addressed in the Department’s jurisdiction/disposition report, Mother missed three out of eight drug tests. She delayed in contacting the specialist assigned to assess Mother’s substance abuse. And she missed an appointment with the social worker. Father downplays these failures, suggesting that the missed tests were an “exception,” and noting that Mother did complete the substance abuse assessment prior to the hearing, although after the Department submitted its report. He also argues that Mother enrolled in Family Connection Court and “consistently provided information to the social worker,” all within a relatively short period of time.

But Mother missed over one-third of the required drug tests in the period between the detention and jurisdictional hearings. While she eventually contacted the specialist assessing her substance abuse, and connected with the social worker after missing her appointment, her delay raised legitimate issues about her consistency, and whether Mother had made sufficient efforts to mitigate the need for O.B.’s removal from her care. Furthermore, this was the third time Mother was involved with the Department since 2017. Based on this record, we conclude it was reasonable for the court to determine that the Department made reasonable efforts to prevent O.B.’s removal from Mother, and that Mother’s efforts to comply with the case plan were insufficient in light of totality of the circumstances.

Father suggests the Department should have made additional efforts to prevent or eliminate the need to remove O.B. from Mother’s care, such as orders preventing Father from living with or visiting O.B. at Mother’s new home, requiring Mother to participate in on-going drug testing and other related conditions, and requiring stringent supervision by the Department. The Department’s decision to forego these additional efforts does not render those efforts they did make unreasonable.

The trial court had substantial evidence before it at the July 2021 hearing to determine that O.B. should be removed from Mother’s care under section 361, subdivision (c). We conclude that there was no reasonable probability that the court would have returned O.B. to Mother at the July 2021 hearing had it complied with section 361, subdivision (e) and specified the facts supporting its decision on the record or in the resulting order.

3. The Trial Court’s Errors Concerning Advisement/Waiver of Trial Rights Do Not Necessitate Reversal

1. Error Regarding Advisement of Trial Rights was Harmless

Father contends the trial court denied him due process in the course of advising him of his procedural due process rights before accepting his waiver of those rights. When questioning Father regarding his submission on the petition based on the social worker’s report, and his waiver of the right to trial, the trial court reminded Father that he “could use the subpoena power of the Court to compel witnesses or the production of documents,” and that he was waiving that right amongst others. While Father responded that, “yes” he “wish[ed] to waive all of those rights,” he asked the court, “So we are not allowed to subpoena police officers; is that correct? [¶] . . . [¶] Are we not allowed to subpoena police officers to cross-examination [sic] them based on statements they have made?” The court responded, “Ms. Vatchkova [Mother’s appointed attorney] volunteered an answer and shook her head with a no. Obviously she is not your attorney, but a very experienced parent counsel. So I would defer to her wisdom on that topic. So returning to the question that I posed to you since I do have this written form, do you wish to waive your right to trial?” Father responded, “Yes.” At no point did Father’s attorney, Mr. Forest, interject to object or correct the court’s statement. Ms. Vatchkova did not explain what she meant by shaking her head “with a no.”

California Rules of Court, rule 5.534(g)(1)[9] provides: “The court must advise the child, parent, and guardian in section 300 cases . . . of the following rights: [¶] (A) The right to assert the privilege against self-incrimination; [¶] (B) The right to confront and cross-examine the persons who prepared reports or documents submitted to the court by the petitioner and the witnesses called to testify at the hearing; [¶] (C) The right to use the process of the court to bring in witnesses; and [¶] (D) The right to present evidence to the court.” Under section 355, subdivision (c)(1)(C), hearsay evidence of the statements of a deputy sheriff contained in the report prepared by the petitioning agency are admissible at a jurisdictional hearing. However, that statute does not limit the right of a party to subpoena the officer. (§ 355, subd. (d).)

Father alleges the trial court interfered with his right to independent, conflict-free representation, and misrepresented his right to subpoena law enforcement officers in its colloquy with him, thus calling into question whether Father knowingly and intelligently waived his trial rights, as they are set forth in rule 5.534(g)(1). Father claims he suffered significant prejudice as a result of the error. The Department does not dispute that Father could have subpoenaed one or more of the involved deputies to testify at the July 2021 hearing. It concedes that the trial court erred in its advisement of Father’s rights in this regard, but argues the error did not result in a miscarriage of justice for Father.

The Department’s concession is well taken. We agree with the parties that the court erred when it failed to clearly advise Father of his right to subpoena the law enforcement officers. The error is particularly troublesome here because there was not merely minor slippage in the court’s recitation of rights. Twice Father affirmatively inquired if he could subpoena the officers. The trial court did not respond directly with the correct information, but in fact implied that it did not know the answer to the question, and relied on Mother’s attorney’s non-verbal comment to provide a less than clear answer that may have communicated that no subpoena right existed. In so doing, the court provided Father with incorrect information. “Because the due process rights protected by [rules requiring the trial court to advise parents regarding their rights] implicate a parent’s fundamental right to care for and have custody of his or her child,” the trial court’s error in is one “of constitutional dimension,” and we may only affirm the resulting order “if the error is harmless beyond a reasonable doubt.” (In re S.N. (2016) 2 Cal.App.5th 665, 672, citing Chapman v. California (1967) 386 U.S. 18, 24 and In re Monique T. (1992) 2 Cal.App.4th 1372, 1377.)

Although the trial court erred when it failed to properly advise Father regarding his right to cross-examine the sheriff’s deputies, we conclude that the error was harmless beyond a reasonable doubt. The evidence supporting the trial court’s jurisdictional and dispositional orders was “overwhelming,” even if the court disregarded the information the social worker obtained from the police report and her discussions with deputies. (See In re S.N., supra, 2 Cal.App.5th at p. 672.) The social worker’s observations at Mother and Father’s home revealed drugs and paraphernalia within O.B.’s reach. The social worker’s investigation revealed Mother’s historical inability to protect O.B. from Father’s substance abuse. Mother was deficient in complying with the case plan put in place prior to the July 8, 2021 hearing. She missed several drug tests, and delayed in participating in the substance abuse disorder assessment. Father has not raised a concern about inaccuracies in the social worker’s report concerning the condition of the home at the time of the June 2021 incident, or her recitation of the parties’ history and compliance with the case plans put in place after that incident. Nor has he indicated that he was precluded from cross-examining the social worker at the July 8 hearing.

As to evidence concerning Father’s conduct, Father admitted he was using heroin when the police arrived at the home. He admitted keeping drugs and paraphernalia in the home. He admitted that he is addicted to drugs, and recognized that he put O.B. at risk through his conduct. Based on the social worker’s observations, as well as the information provided by the parents and other non-law enforcement witnesses, the trial court properly determined that O.B. was at risk of harm in her parents’ care. We conclude that the trial court’s advisement error was harmless beyond a reasonable doubt. (In re S.N., supra, 2 Cal.App.5th at p. 672.)

2. Failure to Make Findings Under Rule 5.682 did not Constitute a Miscarriage of Justice

Father argues the trial court failed to make findings required by rule 5.682(e), and that such failure constituted a miscarriage of justice. Father contends he likely would have elected to proceed to an evidentiary hearing had the court recognized that he was not freely and voluntarily submitting the matter on the petition. Moreover, Father claims it was reasonably probable he could have obtained a more favorable outcome had the court held a full evidentiary hearing, “because the evidence for removal [of O.B.] from Mother was thin.”

Relevant to Father’s contentions on appeal, rule 5.682(e) provides: “After admission, plea of no contest, or submission, the court must make the following findings noted in the order of the court: [¶] . . . [¶] (3) The parent or guardian has knowingly and intelligently waived the right to a trial on the issues by the court, the right to assert the privilege against self-incrimination, and the right to confront and to cross-examine adverse witnesses and to use the process of the court to compel the attendance of witnesses on the parent or guardian’s behalf; [¶] (4) The parent or guardian understands the nature of the conduct alleged in the petition and the possible consequences of an admission, plea of no contest, or submission; [¶] (5) The admission, plea of no contest, or submission by the parent or guardian is freely and voluntarily made. . . .” We review the court’s failure to comply with rule 5.682(e) pursuant to the “miscarriage of justice” test, which permits reversal only if it is reasonably probable that the appellant would have obtained a more favorable result but for the trial court’s error. (In re Celine R. (2003) 31 Cal.4th 45, 59–60.)

The Department concedes that the trial court did not make the required findings but argues the error does not require reversal of the July 2021 order, as it is not reasonably probable that Father would have obtained a more favorable result had the court not made the error. Father argues that he did not intelligently and knowingly waive the right to trial because the trial court provided inaccurate information about his right to subpoena and cross-examine the sheriff’s deputies. But as we have already discussed at length, ante, there was significant evidence before the trial court from sources other than the responding law enforcement officers to support the trial court’s dispositional order.[10] It is not reasonably probable that Father would have obtained a more favorable result had the court made the findings required by rule 5.682(e).

4. Appellant Has Not Met the Burden to Show Ineffective Assistance of Counsel

Father contends he received ineffective assistance of counsel at the July 8, 2021 hearing when Mr. Forest “failed to intervene when Father questioned the court about his right to subpoena law enforcement officers during the court’s misleading advisement.” Father argues that a “reasonably competent attorney” would have interrupted the trial court’s advisement as soon as Father asked the court about his subpoena rights, and/or would have taken action after the trial court suggested Father should defer to Ms. Vatchkova’s nonverbal conduct to ensure that Father was knowingly and intelligently waiving his trial rights. Believing there was no reasonable tactical reason for Mr. Forest’s conduct, Father contends the record on appeal reflects ineffective assistance of counsel.[11]

“To succeed on a claim of ineffective assistance of counsel, the appellant must show: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. [Citations.] Unless the record affirmatively establishes counsel had no rational tactical purpose for the challenged act or omission, we must affirm the judgment. [Citations.] Moreover, ‘[a] court may reject a claim of ineffective counsel if the [appellant] fails to show the result would have been more favorable but for trial counsel’s failings.’ [Citation.]” (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1540–1541 (Kristen B.).)

We need not consider whether Mr. Forest’s conduct “fell below an objective standard of reasonableness” or whether the record “establishes counsel had no rational tactical purpose for the challenged act or omission.” (Kristen B., supra, 163 Cal.App.4th at pp. 1540–1541.) Father has failed to show that the result would have been more favorable but for Mr. Forest’s conduct. (Ibid.) As discussed in section II.B. and C., ante, there was ample evidence to support the trial court’s dispositional order even if the trial court disregarded the disputed police report.

Although Mother was on a path towards reunification with O.B., as is evident from the court’s January 18, 2022 order, as of the July 8, 2021 hearing, she had not yet made sufficient progress to prevent or eliminate the need to remove O.B. from her care. The trial court did not need to rely on the police report, or any statements made by the deputies to the social worker, in order to find by clear and convincing evidence that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c)(1).) As such, any ineffectiveness in Mr. Forest’s representation of Father was not prejudicial. Father has not made the showing required to sustain an ineffective assistance of counsel claim.

5. Conclusion

Father has raised important points regarding errors and deficiencies in the trial court’s adjudication of the matter of O.B. However, we are required to affirm the dispositional order unless prejudice is established under the relevant standards of review, and we have concluded that such prejudice does not exist on this record. Our affirmance of the trial court’s order should not be construed as an endorsement of the failure of the trial court to adhere to the statutory and due process requirements attendant to dependency proceedings, which have long been recognized as essential to a fair and proper resolution of dependency cases for both parent and child.

III. Disposition

The July 8, 2021 jurisdiction and dispositional orders are affirmed.

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Greenwood, P. J.

WE CONCUR:

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Grover, J.

______________________________________

Lie, J.

In re O.B.; Santa Cruz County HSD v. v. D.B.

No. H049268

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

[2] Father separately filed a petition for writ of habeas corpus (case No. H049651) which we ordered considered with this appeal. We summarily deny the writ petition in a separate order.

[3] Section 300, subdivision (b)(1) specifies that a minor comes within the jurisdiction of the juvenile dependency court when “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 the child’s parent or guardian to adequately supervise or protect the child, . . . 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.” On the first page of the petition, the Department checked the box indicating that O.B. came within the court’s jurisdiction under subdivision (b)(2) of section 300, which concerns commercially sexually exploited children. That appears to be a clerical error, as there are no allegations in the petition, or elsewhere in the record, that O.B. was subject to commercial sexual exploitation.

[4] In addition to Mother, Father, and O.B., there was another woman and her child in the home at the time of the search. Neither was before the court in these proceedings.

[5] The social workers’ jurisdiction/disposition report states this information came from an interview with Mother. In context, this appears to be an error, as the portion of the report discusses information Father reported.

[6] In his opening brief, Father also raised arguments challenging the trial court’s Indian Child Welfare Act (ICWA) findings which he now concedes were rendered moot when the trial court returned O.B. to Mother at the six-month status review hearing. This court grants the Department’s requests for judicial notice, filed January 5, 2022, and January 20, 2022, and takes judicial notice of the documents attached to the motions, including the trial court’s January 18, 2022 minute order and written order from that review hearing. We do so for the limited purpose of determining whether the trial court’s subsequent actions render any portion of this appeal moot. (See In re M.F., supra, 74 Cal.App.5th at p. 110.) We deny the Department’s request to augment the record with these documents, as they were not before the trial court when it issued the orders being reviewed in this opinion. As the ICWA issue is now moot, we will not address the facts and arguments related to that issue.

[7] As Father’s appeal focuses on the trial court’s assessment related to Mother and her conduct, we will do the same.

[8] Although the social worker noted the “unkempt” condition of the parties’ home in her report, the Department did not rely on that in recommending that O.B. remain out of the home following the jurisdictional/ dispositional hearing. The home’s condition is not itself a basis for O.B.’s removal.

[9] Undesignated references to rules of court are to the California Rules of Court.

[10] Father concedes that “jurisdiction was probable after an evidentiary hearing,” thus we focus the discussion on the effect the error had on the dispositional order.

[11] While this court was allowed to consider evidence outside of the appellate record to evaluate Father’s petition for writ of habeas corpus (see fn. 2, ante), on appeal we consider only the evidence before the trial court at the time it issued the subject order. (See In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)