Filed 11/27/13 T.P. v. Super. Ct. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT



T.P.,                                                                                      F068050

         Petitioner,                                                      (Super. Ct. Nos. 516423, 516424)

                   v.
                                                                                         OPINION
THE SUPERIOR COURT OF STANISLAUS
COUNTY,

         Respondent;

STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,

         Real Party in Interest.
                                                   THE COURT*
         ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
         T.P., in pro. per., for Petitioner.
         No appearance for Respondent.
         John P. Doering, County Counsel, Maria Elena Ratliff, Deputy County Counsel,
for Real Party in Interest.


*        Before Detjen, Acting P.J., Peña, J. and Oakley, J.†
†     Judge of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                         -ooOoo-
       T.P. (mother), in propria persona, seeks an extraordinary writ from the juvenile
court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code,
§ 366.21, subd. (f))1 terminating her reunification services and setting a section 366.26
hearing as to her six-and four-year-old sons, Nathan and Sebastian, respectively. Mother
seeks a continuation of reunification services and return of the children to her custody.
We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In February 2012, Nathan and Sebastian’s maternal grandmother, Karen,
petitioned the San Joaquin County juvenile court for guardianship over then four-year-old
Nathan and two-year-old Sebastian. Mother had left the children in Karen’s care and
Karen claimed mother had been reported to Child Protective Services (CPS) for child
abuse and was depressed and suicidal. Karen also stated that the children’s fathers were
in Mexico.
       The juvenile court ordered the San Joaquin County Human Services Agency (SJ
agency) to investigate Karen’s circumstances and provide an assessment. The SJ agency
reported that Karen had an extensive CPS history that resulted in the adoption of two of
her children. In addition, Karen had a criminal history that included a conviction for
child cruelty. The SJ agency recommended against guardianship and filed a dependency
petition on the children’s behalf.
       The juvenile court adjudged the children dependents under section 300 and, in
September 2012, transferred the case to Stanislaus County, mother’s county of residence.
The Stanislaus County juvenile court (juvenile court) accepted the case and set the
dispositional hearing for November 2012. The Stanislaus County Community Services
Agency (agency) placed the children together in foster care.

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


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       The agency reported mother had a history of referrals dating back to 2008,
including reports that she yelled at the children, left them unattended, and smoked
marijuana in their presence. In addition, mother disclosed a history of depression for
which she was hospitalized, but did not elaborate. She later revealed that she was
seeking treatment for her depression when she left the children with her mother. She was
hospitalized for a month and prescribed an antidepressant.
       In its report for the dispositional hearing, the agency recommended the juvenile
court order a reunification plan for mother that required her to complete a clinical
assessment and parenting program, participate in individual counseling and weekly
visitation, and submit to random drug testing, if requested. Mother’s case plan further
required her to complete a substance abuse assessment and follow any recommended
treatment if she tested positive for drugs.
       In November 2012, the juvenile court approved the proposed reunification plan for
mother and denied reunification services for Nathan and Sebastian’s fathers. The
juvenile court also set the six-month review hearing for the following month.
       In December 2012, the juvenile court convened the six-month review hearing but
continued it until late January 2013, to hear mother’s Marsden2 motion, which it denied.
       In its report for the six-month review hearing, the agency advised the juvenile
court that mother scheduled initial appointments but was not otherwise participating in
her services. In addition, she missed four visits, appeared to lack parenting skills, and the
children did not appear distressed when separating from her.
       In January 2013, at the six-month review hearing, the juvenile court continued
mother’s reunification services and set the 12-month review hearing for June 2013.
Mother did not appear at the hearing.




2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


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       In April 2013, mother informed her social worker that she was approximately six
weeks pregnant and expected to deliver in early December 2013.
       In early June 2013, mother tested positive for opiates following a visit. She denied
abusing drugs and explained she was given Vicodin at the emergency room a few weeks
before. Several days later, mother completed an alcohol and drug assessment, again
denying any drug abuse. Mother’s social worker told her to attend Alcoholics/Narcotics
Anonymous meetings for 21 consecutive days after which the agency would authorize
another alcohol and drug assessment.
       In its report for the 12-month review hearing, the agency reported mother was not
compliant with any aspect of her case plan and that she missed at least 13 visits from
November 2012 to May 2013. The agency recommended the juvenile court terminate her
reunification services.
       Mother requested a contested hearing, which the juvenile court set for early July
2013. Meanwhile, mother completed a second alcohol and drug assessment during which
she admitted taking Vicodin with an outdated prescription and codeine without a
prescription. She disclosed she was not taking any psychotropic medication because of
her pregnancy, even though she was increasingly symptomatic. She said she and her
doctor were exploring treatment options for her and she was willing to receive treatment
for her prescription medication abuse. As a result of the assessment, mother was
referred for drug treatment.
       In July 2013, at the time set for the 12-month review hearing, the juvenile court
continued the hearing, along with mother’s services, until September 2013, but warned
her it was her last chance. The following day, mother’s social worker sent her a letter
listing the services she needed to complete along with the names and telephone numbers
of the individuals she needed to contact to initiate services.
       In late July 2013, mother began intensive outpatient treatment but was terminated
from the program in late August for excessive absences. By September 2013, mother


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completed the group parenting classes but had yet to begin the individual parenting
sessions. In September, she completed a clinical assessment in which the clinician
recommended mother complete a psychological evaluation. After the assessment, mother
began individual counseling with the same clinician. During this time, she tested
negative for drugs and visited the children weekly.
       In its report for the continued 12-month review hearing, the agency recommended
the juvenile court terminate mother’s reunification services and set a section 366.26
hearing. The agency opined that mother had not “effectively engaged in her case plan
and demonstrated that she is serious about having her children returned to her care.”
       In September 2013, on the date set, the juvenile court convened the continued
contested 12-month review hearing. Mother, the sole witness, testified she stopped
participating in intensive outpatient drug treatment because she did not like to hear about
drugs and did not need to be there. She denied being a drug addict or using drugs
recreationally. She said she was not willing to further participate in drug treatment.
       Mother was questioned about her positive result for an opiate in June 2013. She
testified she was treated at the hospital for a bad yeast infection on the day she was drug
tested. The doctor gave her Vicodin for pain at the hospital but did not give her a
prescription.
       Mother further testified she had a two-bedroom apartment where the children
could live and she wanted the juvenile court to return them to her custody.
       Following argument, the juvenile court found it would be detrimental to return the
children to mother’s custody and terminated her reunification services. In so ordering,
the juvenile court also found mother was provided reasonable reunification services but
made minimal progress in her services plan and there was not a substantial probability the
children could be returned to her custody if services were continued for another six weeks
to reach the 18-month review. Finally, the juvenile court set a section 366.26 hearing to
be conducted in January 2014. This petition ensued.


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                                       DISCUSSION
       Mother does not identify specific orders and findings of the juvenile court she
claims are erroneous or set forth legal arguments in her writ petition as required by
California Rules of Court, rule 8.452(b) (rule 8.452), which governs the procedures for
initiating dependency writ proceedings in this court. Rather, she makes assertions
regarding her reunification services, social worker and attorney. In essence, mother
contends she sufficiently complied with her services plan to warrant an order continuing
reunification services, citing her completion of a parenting program and clinical
assessment, and participation in individual counseling. Mother further contends she
should not be penalized for not participating in intensive outpatient drug treatment
because she did not need it, pointing to her one positive drug test result and lack of drug-
related criminal history. She informs this court that she has been “clean” for over 100
days. She also asserts her social worker was biased against her and her attorney did not
work with her. She asks this court to direct the juvenile court to return the children to her
custody, continue her reunification services and terminate its dependency jurisdiction.
       Though mother’s petition does not technically comply with the content
requirements of rule 8.452, we will liberally construe a petition in favor of its sufficiency
in order to determine the petition on the merits. (Rule 8.452(a)(1) & (d).) In this case,
we construe the petition as challenging the juvenile court’s findings that it would be
detrimental to the children to return them to mother’s custody, and mother was provided
reasonable services, and its order terminating reunification services. We also construe
the petition as raising a claim of ineffective assistance of counsel.
                                  Return of the Children
       At the 12-month review hearing, there is a statutory presumption that a dependent
child will be returned to parental custody unless the juvenile court finds, by a
preponderance of the evidence, that the return of the child would create a substantial risk
of detriment to the child’s safety, protection or well-being. (§ 366.21, subd. (f).) In


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assessing detriment, the juvenile court first determines whether the parent regularly
participated in his or her court-ordered services and whether the parent made substantive
progress. (Ibid.) If the parent has not done so, the juvenile court may find prima facie
evidence that it would be detrimental to return the child. (Ibid.) In other words, the
juvenile court may find that it would be detrimental to return the child simply based on
the parent’s failure to participate and progress in services.
       In this case, mother refused to participate in intensive outpatient drug treatment.
She argues it was an inappropriate service for her based on what she claims is a
negligible history of drug use. However, the reunification plan ordered by the juvenile
court at the dispositional hearing required her to complete a substance abuse assessment
if she tested positive for drugs. Mother tested positive, was assessed, and was referred
for intensive outpatient drug treatment. Mother did not challenge that component of her
reunification plan by direct appeal from the juvenile court’s dispositional order.
Consequently, she assented to the content of the plan and cannot challenge it on her writ
petition. (In re Julie M. (1999) 69 Cal.App.4th 41, 47.)
       Further, though mother participated in certain aspects of her case plan, she did not
participate at all in drug treatment. Consequently, prima facie evidence of detriment
exists on the record and the juvenile court did not err in not returning the children to
mother at the 12-month review hearing.
                         Continuation of Reunification Services
       Where, as here, the juvenile court cannot safely return a child to parental custody,
the juvenile court must set a section 366.26 hearing unless the court finds the parent was
not provided reasonable services or there is a substantial probability the child could be
returned to the parent on or before the 18-month review hearing. (§ 366.21, subd. (g).)
       Mother contends her social worker was biased against her but does not cite any
evidence to support her contention. In addition, she does not cite any evidence that the




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agency did not satisfy its duty of assisting her in accessing her court-ordered services.
Consequently, she failed to show the juvenile court’s reasonable services finding is error.
       Mother further fails to show, and the record does not support, a finding that there
was a substantial probability the children could be returned to mother’s custody by the
18-month review hearing, which in this case fell on November 1, 2013. In order to find a
substantial probability of return, the juvenile court had to find all of the following:
mother regularly visited the children; made significant progress in resolving the problem
prompting the children’s removal; and demonstrated the capacity and ability to complete
the objectives of the case plan and provide for the children’s safety, protection and well-
being. (§ 366.21, subd. (g)(1).)
       In this case, the juvenile court found mother did not make significant progress in
resolving the problem prompting the children’s removal and did not demonstrate the
capacity and ability to complete the objectives of her case plan and provide for their
safety in the six weeks before the 18-month review hearing. We conclude substantial
evidence supports the juvenile court’s findings. The record strongly suggests mother
abuses prescription medication. In addition, she refused to participate in drug treatment.
Under the circumstances, there was no reason to believe mother could or would be able to
safely parent the children in the short time remaining for reunification.
                             Ineffective Assistance of Counsel
       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.) 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 that her attorney was ineffective, mother would
have to identify the specific acts that rendered her attorney ineffective and show that but
for those acts the juvenile court would have ruled in her favor.


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       In this case, mother merely asserts her attorney “did not work for her” without
specifying how counsel was ineffective. Consequently, she failed to meet her burden of
demonstrating the ineffectiveness of counsel. Further, we found substantial evidence to
support the juvenile court’s decisions not to return the children and to terminate mother’s
reunification services and set a section 366.26 hearing.
       Having affirmed the juvenile court’s decisions not to return the children to
mother’s custody and to terminate reunification efforts, we need not address mother’s
contention that the juvenile court erred in retaining jurisdiction over the children. We
find no error on this record.
                                     DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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