Jennifer K. v. Sup. Ct.

Filed 3/7/07 Jennifer K. v. Sup. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Frank Dougherty, Judge.

Jennifer K., in pro. per., for Petitioner.

No appearance for Respondent.

James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing.^[1]We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In April 2006, the Merced County Human Services Agency (agency) removed petitioners three children, six-year-old M.C., four-year-old C.C., and two-year-old C.F., from her custody because of the unsanitary and unsafe condition of her home and her drug use. The emergency response social worker found the children dirty and the house filthy and foul-smelling. There was dried food on the stove and moldy food in dishes in the bedrooms and on the kitchen table. The childrens bedrooms were cluttered with piles of clothing and trash. Petitioner told the social worker she had been using methamphetamine on and off for 14 years and that she would test positive for methamphetamine if tested.

The agency set forth the facts as detailed above in a dependency petition, alleging petitioner failed to protect the children. ( 300, subd. (b)) The agency placed M.C. and C.C. with their maternal aunt and uncle and C.F. with his paternal grandparents.

In mid-April, the court conducted the detention hearing and appointed counsel for petitioner who was present. The court found a prima facie showing the children came within the provisions of section 300, subdivision (b) and reasonable efforts had been made to prevent the childrens removal. The court also ordered petitioner to submit to urine and hair follicle tests, which came back positive for methamphetamine.

In May, the court conducted separate jurisdictional and dispositional hearings. Petitioner failed to appear at either hearing and the agency reported that she had not attempted to contact her caseworker since the children were ordered detained nor had she responded to the caseworkers attempts to contact her. The court found the allegations in the petition true, ordered the children removed from petitioners custody and ordered a plan of reunification, which required petitioner to complete a parenting program, participate in domestic violence counseling, complete a substance abuse assessment, submit to random drug testing and visit the children at least once a month under agency supervision. The court set a November 2006 six-month review hearing (review hearing).

In early June, the caseworker reviewed petitioners case plan with her and petitioner signed it. Over the next six months, petitioner only partially complied with some aspects of her case plan. She participated in domestic violence counseling and, according to her counselor, demonstrated a positive attitude. She also visited the children once a month and acted appropriately with them. However, there were indications that she was still using drugs. Though she tested negative for drugs on a urine screen in July, she tested positive for methamphetamine on hair follicle tests administered in August and September. She also sweated profusely at times during visitation, causing the supervising social worker to believe she was under the influence of drugs. In addition, petitioner was terminated from her parenting class after attending one session. She completed a drug and alcohol assessment but did not follow the counselors recommendation to complete an assessment for depression. Given petitioners lack of compliance and the caregivers willingness to adopt the children, the agency recommended in its six-month status report that the court terminate reunification services at the review hearing and set a section 366.26 hearing.

On November 28, 2006, the court conducted the review hearing. Petitioner appeared with counsel who advised the court petitioner understood the agencys recommendations but continued to deny the allegations against her. She also claimed there were errors in the agencys report and requested another attorney.

The court took petitioner and her attorney into chambers. Petitioner disputed the drug test results, claiming the drug laboratory did not follow the proper chain of custody. She also told the court she believed another attorney could better represent her and she wanted to retain private counsel. Trial counsel explained he had not had an opportunity to communicate with petitioner because she did not attend the hearings and his correspondence to her was returned undelivered. The court declined to appoint another attorney but told petitioner she could substitute in retained counsel anytime she wanted.

Back in the courtroom, petitioner waived her trial rights. Consequently, the court terminated reunification services and set the section 366.26 hearing for March 20, 2007. This petition ensued.

DISCUSSION

Petitioner raises several issues, which challenge the juvenile courts detention, jurisdictional and dispositional orders. For example, she claims there was no evidence she was using methamphetamine when the children were removed and that the agency did not consider alternatives to removing the children from her custody. However, petitioner is now foreclosed from raising these issues. In dependency proceedings, the juvenile courts findings and orders up to and including those issued at the dispositional hearing are directly appealable from the dispositional findings and orders. Having failed to appeal, petitioner waived her right to appellate review. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.)

Petitioner further claims trial counsel was ineffective for advising her to agree with the allegations at the detention hearing, failing to communicate with her and giving her the wrong Judicial Council form for filing a petition for extraordinary writ. We find no merit to her claim of ineffective assistance.

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 that but for counsels representation, the juvenile court would have either dismissed the dependency petition and returned the children to her custody or continued her reunification services. On the record before us, we find no evidence of prejudicial error.

Assuming trial counsel misadvised petitioner not to challenge the sufficiency of the petition at the detention hearing, such advice was not prejudicial to her case given the strength of evidence supporting the agencys allegations; i.e., direct observation of the well-being of the children and the filthy condition of the home and petitioners admission to methamphetamine use. Therefore, there is no reason to believe the court would have dismissed the petition and returned the children to petitioners custody even if trial counsel had challenged the sufficiency of the petition.

Further, petitioner cannot claim trial counsel was ineffective for failing to communicate with her when the evidence reflects that it was she who failed to maintain contact. Petitioners only court appearances were at the detention hearing in April and the review hearing in November. In the interim, her attorney unsuccessfully attempted to contact her by mail. In our view, petitioner made herself unavailable and, in doing so, failed to assist in her own representation. Therefore, if there were any prejudice due to lack of attorney/client contact, which we do not believe there was, petitioner brought it upon herself. We conclude the lack of attorney/client contact was not prejudicial in this case because the evidence not only supported a prima facie showing for purposes of detention but also supported the courts assumption of jurisdiction and its order removing the children from petitioners custody. Therefore, even if petitioner and trial counsel had coordinated a defense, we conclude the court would have made the findings and orders it did at the jurisdictional and dispositional hearings.

Finally, even if petitioner was given the wrong Judicial Council writ petition form, she suffered no harm. She filed a writ petition, which this court reviewed on its merit and concluded petitioner did not receive ineffective assistance of counsel.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.

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