Filed 7/7/15 Ruby W. v. Superior Court 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

RUBY W.,
                                                                                           F071270
                            Petitioner,
                                                                          (Super. Ct. Nos. 516765, 516766)
                   v.

THE SUPERIOR COURT OF STANISLAUS                                                         OPINION
COUNTY,

                            Respondent;

STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,

                            Real Party in Interest.



                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
         Robert D. Chase for Petitioner.
         No appearance for Respondent.
         John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Real Party in Interest.
                                                        -ooOoo-



*        Before Levy, Acting P.J., Gomes, J. and Peña, J.
       Ruby W. seeks extraordinary writ relief from the juvenile court’s orders issued at a
contested 18-month review hearing (Welf. & Inst. Code, § 366.22, subd. (a))1 terminating
her reunification services and setting a Welfare and Institutions Code section 366.26
hearing as to her adopted sons, seven-year-old G.W. and four-year-old X.W. She
contends the Stanislaus County Community Services Agency did not provide her
reasonable reunification services. She further contends her trial attorney was ineffective
for failing to challenge the reasonableness of services at the 12-month review hearing or
by direct appeal. We deny the petition.
                        PROCEDURAL AND FACTUAL SUMMARY
       Ruby is the biological great-grandmother of G.W. and X.W. She adopted them in
2012, because their biological mother, Laura, was drug-addicted and in and out of jail.
       On August 22, 2013, Officer England of the Ceres Police Department responded
to a report that a woman, approximately 70 years old, was in Walmart with a small child
who appeared to have been physically abused. Officer England located Ruby in the store
pushing then two-year-old X.W. in a shopping cart. X.W. had significant injuries on his
face and head, including numerous bruises, two black eyes, a split lip, a large welt on his
forehead and other marks on the top of his head and forehead.
       Ruby told Officer England her grandson, Michael, and his girlfriend, Tara, had
been staying at her house for approximately one month. Laura had been staying there for
two or three days. Michael and Laura have criminal histories that involve charges and
convictions for drug possession and violent offenses.
       Ruby said that on the day before, X.W. and G.W. were outside in the backyard
playing. Michael and Tara were also in the backyard. Ruby went outside to check on
X.W. and he started to run toward her. He slipped in the soft dirt and fell into the side of


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


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the house and onto the ground. Ruby later changed her story and said that X.W. entered
the residence with Michael and Tara. X.W. had visible swelling on the right side of his
forehead. Michael and Tara told Ruby that X.W. slipped in the sand, causing him to fall
into the side of the house and then to the ground. Ruby said she did not see X.W. fall.
        Officer England asked Ruby why her story changed. Ruby became argumentative
but then broke down and said she believed Michael injured X.W. The week before,
Michael was giving X.W. a bath and she heard X.W. crying. She checked on him several
times but could not figure out why he was crying. Ruby said X.W. did not have any
other visible injuries besides the injury on his forehead and had not had any visible
injuries prior to this incident. However, she later changed her story and said he had small
bruises on his body from falling on the bricks in front of the house on August 20, 2013.
She said she never physically abused X.W. She spanked him on the buttocks but never
hard.
        Officer England called for an ambulance and X.W. was transported to the hospital.
Officer England also contacted the Stanislaus County Community Services Agency
(agency), and social worker Michelle Silveira joined Officer England, Detective Britton
Moore, Ruby and X.W. in the emergency room.
        X.W. told Silveira, “him hit me, Bo hit me, and Momma hit me.” “Him” was a
reference to Michael and “Bo” a reference to G.W. When asked who “Momma” was,
X.W. pointed to Ruby. G.W. said Michael hit him and X.W. but that Ruby did not.
        Silveira took X.W. and then-five-year-old G.W. into protective custody. Detective
Moore took Ruby to the police department and interviewed her.
        Ruby told Detective Moore that approximately one week before, X.W. sustained a
small bruise on his head and a cut lip while outside with Michael. Michael told her X.W.
fell. X.W. said Michael hit him and threw X.W. against the wall of the house. After that,
Ruby said she tried not to leave the children alone with Michael. However, the morning
before, Michael was outside with the boys making them clean up the yard when X.W.

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went into the house and had the large wound on his forehead. Michael said X.W. ran
away from him and fell. Ruby believed that Michael either pushed X.W. or hit him. She
said X.W. was afraid of Michael and cried if Michael was around.
        Ruby also told Detective Moore about an incident when Michael was bathing
X.W. and screaming at him and X.W. vomited in the bathtub. She also heard Michael hit
X.W. with what she thought was a belt. She went in to investigate and Michael told her it
was a wet towel. She took X.W. out of the bathtub and noticed a red mark on his
buttocks. She also disclosed that X.W. had a bruise on his penis. She did not know if
Michael or G.W. caused it. She said X.W.’s penis was still swollen but there was no
blood in his urine.
        Detective Moore told Silveira about the possible injuries on X.W.’s buttocks and
penis. She had already taken X.W. back to the hospital. He had major bruising on the
left side of his buttocks and red swelling possibly caused by a belt on the right side of his
buttocks. He also had other marks in various stages of healing on his buttocks and lower
back.
        Michael was arrested and Detective Moore interviewed him at the jail. Michael
stated he was staying with Ruby to help with his terminally ill adult brother. He did not
have to discipline the children, but stepped in when Ruby seemed stressed. He said he
used “time out” with them. He said that G.W. was mean and bit, hit and kicked X.W.
G.W. also screamed, yelled and caused Ruby stress.
        Michael told Detective Moore that Ruby and Laura hit X.W. He claimed that
Laura had prior charges for assault with a deadly weapon and had been in jail for murder
and other violent offenses. He admitted spanking the children, but denied hitting them
with a belt or a towel. He believed Laura hit X.W. with a belt. He said there was never
an incident when he hit the children during a bath and said X.W. vomited once because
he was sick. He said X.W. fell outside and sustained the bump on his head, black eyes
and split lip. He put ice on X.W.’s head as a form of treatment. He explained that X.W.

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was afraid of him because Ruby told X.W. that Michael would “get” him if he
misbehaved.
        Detective Moore forwarded his reports to the district attorney for possible charges
against Michael for child abuse and Ruby for child endangerment.
        The department filed a dependency petition on behalf of G.W. and X.W. alleging
they were described by subdivisions (a) (serious physical harm) and (b) (failure to
protect) of section 300.
        In November 2013, the juvenile court adjudged the children dependents as alleged,
ordered them removed from Ruby’s custody, and ordered her to participate in mental
health counseling and parenting classes. The department placed the children in foster
care.
        In March 2014, Ruby was arrested on two counts of felony child abuse.
        In April 2014, the agency filed its report for the six-month review hearing and
recommended the juvenile court continue Ruby’s reunification services. The agency
reported that Ruby had made steady progress in her services plan and regularly visited the
children. She completed a 10-week parenting class and individual counseling. Her
clinician requested an additional 10 sessions of individual parenting education to help her
more fully benefit from the parent/child labs. The agency also reported that Ruby had
obtained restraining orders against Laura and Michael.
        In June 2014, the juvenile court conducted the six-month review hearing and
approved an updated plan, which required Ruby and the children to participate in
parent/child interactive therapy (PCIT) labs. It also required Ruby to address enabling
and co-dependency in her counseling sessions and demonstrate that she could protect the
children from physical and sexual abuse. The court continued Ruby’s reunification
services to the 12-month review hearing scheduled in October 2014.
        By October 2014, Ruby was reportedly doing well in her counseling sessions and
demonstrated that she would comply with the restraining order against Laura. She had

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also developed a safety plan to protect the children and was working on assertiveness and
boundary-setting. However, the agency was not convinced that Ruby would protect the
children. One incident in particular concerned the agency. In June 2014, Ruby told a
social worker that G.W.’s foster mother made him eat a hot pepper as punishment. Ruby
recognized that it was a form of child abuse but said she was willing to overlook it to
prevent the children from being moved again. She also stated she did not know the
children were being abused until the agency intervened.
       The agency further reported that G.W. and X.W.’s behavior was challenging.
G.W. was aggressive and threw temper tantrums. X.W. was hyper and did not listen or
follow directions. They were both seeing a therapist and G.W. was taking medication.
The agency referred Ruby for PCIT in June 2014, but the assessor did not believe she
spent sufficient time with the children for the therapy to be effective. The agency
increased Ruby’s visitation with the children to twice a week and resubmitted the referral.
       The agency recommended the juvenile court continue Ruby’s reunification
services so she could participate in PCIT and demonstrate her ability to protect the
children.
       In November 2014, the juvenile court conducted the 12-month review hearing,
found the agency provided Ruby reasonable services, and continued services to the 18-
month review hearing, which it set for February 2015. The court also ordered the agency
to provide Ruby two visits each week with discretion to advance to overnight visits.
       In January 2015, the children’s foster parent asked the agency to find them another
home because of G.W.’s defiant and destructive behavior. He stabbed X.W. in the cheek
with a pencil and was sent to his room. He destroyed the room, breaking frames, pulling
curtains down and hitting and kicking the walls. The agency placed the children in a long
term foster care home.
       In its report for the 18-month review hearing, the agency reported that Ruby
completed her individual counseling treatment goals and continued to see her counselor.

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She began PCIT in December 2014, and met with G.W. one-on-one for an hour and X.W.
one-on-one for the second hour. In January 2015, her PCIT counselor said she was doing
“fairly well” given the limited time she had with the children but was using physical
force to get them to obey her. X.W. was not responsive to her and rejected her affection.
In addition, Ruby was unable to manage the children during visits. They threw furniture
and other miscellaneous items out of the visitation room. They also ran out of the room
and Ruby could not run after them. On two occasions, they had to be carried out of the
building to the foster parent’s car.
       The agency recommended that the juvenile court terminate Ruby’s reunification
services because she was in denial about her role in the children’s abuse and she could
not manage and safely parent them. As late as January 2015, Ruby said she did not know
G.W. and X.W. were being physically abused. Had she known Michael was abusing
them, she said she would not have taken X.W. to Walmart. She never said she would
have called the authorities or sought medical treatment for him.
       On February 13, 2015, the juvenile court convened the 18-month review hearing
and set it for a contested hearing in March 2015. The court also reduced Ruby’s
visitation with the children to one time a week until the March hearing.
       Ruby testified at the contested 18-month review hearing in March 2015 that she
was working with G.W. and X.W. on their aggressive behavior in the PCIT sessions. She
perceived G.W. as having made a lot of progress. She believed she could safely parent
the children and manage their behaviors because of the skills she learned through PCIT.
Ruby conceded, however, that as late as January 2015, she claimed not to know the
children were being abused and had to be pushed to admit that she had difficulty
parenting them “at times.”
       Social Worker Rosa Gandarilla was called to testify by Ruby’s attorney. She was
assigned the case in June or July of 2014. Ruby’s attorney asked why the agency delayed
in referring Ruby for PCIT, failed to notify Ruby of the children’s medical appointments

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and allowed a gap in the children’s therapy from September 2014 to February 2015.
Gandarilla said the children were moved in January 2015 and again more recently. The
foster parents were trying to make medical appointments as quickly as they could and had
not notified Gandarilla, who in turn did not notify Ruby. Gandarilla explained that the
children’s changes in placements also resulted in changes in counselors and thus a gap in
treatment. Gandarilla testified that she referred Ruby for PCIT in November 2014.
When Ruby’s attorney asked her why, county counsel objected, arguing the timing was
irrelevant because the juvenile court found Ruby was provided reasonable services up to
the 12-month review hearing in November 2014. The juvenile court sustained the
objection.
       At the conclusion of the hearing, the juvenile court terminated Ruby’s
reunification services and set a section 366.26 hearing. This petition ensued.
                                            DISCUSSION
       Ruby contends a confluence of factors, for which she faults the agency, prevented
her from reunifying with the children. Specifically, she argues the agency’s delay in
referring her for PCIT, its failure to ensure continuity of counseling for the children, and
its failure to notify her of the children’s medical appointments deprived her and the
children the skills and the resources to manage the children’s behavior and reunite them
as a family. Thus, she contends, the agency did not provide her reasonable services and
the juvenile court erred in finding that it did.
       Ruby further contends her trial counsel was ineffective for not raising the agency’s
delay in providing her PCIT as a reasonableness of services issue at the 12-month review
hearing or on appeal. We find no merit to her contentions.
       At each review hearing, the juvenile court must determine whether the parent was
provided reasonable reunification services since the last review hearing. In this case, for
example, the juvenile court had to determine whether Ruby received reasonable
reunification services since the 12-month review hearing in November 2014.

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       The crux of Ruby’s argument with respect to PCIT is that the agency delayed in
referring her for the therapy and as a result of the delay she and the children did not have
an adequate opportunity to fully benefit from it. There are two problems, however, with
her argument at this stage of the proceedings: (1) the delay to which she refers occurred
prior to the 12-month review hearing, and (2) she did not appeal the juvenile court’s
reasonable services finding. The record reflects that the agency addressed the delay in its
12-month status report, explaining that Ruby was referred for PCIT in June 2014, but that
she was not considered a candidate for the program because of the infrequency of her
visitation. As a result, the agency increased her visits and submitted a second referral in
early October 2014. At the 12-month review hearing in November 2014, Ruby was
approved for the therapy but had yet to begin. Her attorney did not argue the delay was
unreasonable at the hearing or challenge the court’s finding on appeal. Consequently, it
is now final and binding and not subject to our review. (Sara M. v. Superior Court
(2005) 36 Cal.4th 998, 1018.)
       Ruby contends nevertheless that her trial counsel was ineffective for not raising
the reasonable services issue on appeal from the juvenile court’s orders issued at the 12-
month review hearing. She does not, however, explain why this court should review a
claim of ineffective assistance of counsel arising from an antecedent final order. (See In
re S.D. (2002) 99 Cal.App.4th 1068, 1079-1082.) Further, even assuming for the sake of
argument that the circumstances permitted our review, we would nevertheless conclude
that Ruby’s trial counsel was not ineffective as we now explain.
       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, Ruby would

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have to show that the juvenile court or this court would have found the agency’s efforts in
providing her PCIT were unreasonable if her attorney had raised the issue in a timely
manner. However, this record would not support such a conclusion. The agency
provided a reasonable explanation for the delay in facilitating Ruby’s access to PCIT.
Further, even if the agency’s efforts were deemed unreasonable, the juvenile court would
have continued Ruby’s reunification services, which it did. Thus, Ruby was not
prejudiced by her attorney’s failure to challenge the juvenile court’s reasonable services
finding.
       As to the agency’s efforts to provide her services from the 12-month review
hearing to the 18-month review hearing, Ruby contends they were unreasonable because
the agency did not ensure that the children were in therapy at all times and did not notify
her of the children’s medical appointments. Ruby fails, however, to show specifically
how the agency’s efforts in those areas were unreasonable, especially given evidence that
the circumstances were beyond the agency’s control. Notably, Gandarilla explained that
the children’s therapy was disrupted by the need to change their placement multiple times
and that the foster parents did not always notify her of the children’s medical
appointments.
       We conclude substantial evidence supports the juvenile court’s finding that Ruby
was provided reasonable services and affirm its orders terminating her reunification
services and setting a section 366.26 hearing.
                                         DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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