Filed 7/13/15 Jennifer L. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

JENNIFER L.,
                                                                                           F071454
         Petitioner,
                                                                               (Super. Ct. No. 14JD0001)
                   v.

THE SUPERIOR COURT OF KINGS                                                              OPINION
COUNTY,

         Respondent;

KINGS COUNTY HUMAN SERVICES
AGENCY,

         Real Party in Interest.



                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for extraordinary writ review. Jennifer Lee
Giuliani, Judge.
         Jennifer L., in pro. per., for Petitioner.
         No appearance for Respondent.
         Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel,
for Real Party in Interest.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Gomes, J. and Peña, J.
       Jennifer L. in propria persona seeks extraordinary writ relief 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 children, 10-year-old Ashlee G., five-year-old Gauge V. and three-year-
old A.V.2 Jennifer contends her attorney was ineffective, the juvenile court allowed
testimony into evidence despite valid objections, and the juvenile court conducted the
hearing without essential people present. We deny the petition.
                    PROCEDURAL AND FACTUAL SUMMARY
       In January 2014, Jennifer was arrested following a probation search in which
officers found a large bindle of methamphetamine, glass pipes and two sharp knives in
her bedroom to which the children, then eight-year-old Ashlee, three-year-old Gauge and
23-month-old A.V., had unrestricted access. Jennifer admitted having an extensive
history of drug use, but claimed the methamphetamine and pipes belonged to Julio who
was incarcerated on drug-related charges. Julio is the father of Gauge and A.V. Juan is
the alleged father of Ashlee and resides in Mexico.
       The Kings County Human Services Agency (agency) took the children into
protective custody and placed them in foster care.
       The juvenile court exercised its dependency jurisdiction over the children after
sustaining allegations that Jennifer’s substance abuse placed the children at a substantial
risk of serious physical harm or illness. (§ 300, subd. (b).) The juvenile court ordered a
plan of reunification for Jennifer but denied Julio and Juan reunification services.
Jennifer’s services plan required her to complete a parenting program, participate in



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2      Because this child’s name is unique, we refer to her by her first and last initials to
protect her privacy. (Cal. Rules of Court, rule 8.401(a)(2).)


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outpatient substance abuse treatment, submit to random drug testing and attend weekly
Alcoholics/Narcotics Anonymous (AA/NA) meetings.
       Over the ensuing six months, Jennifer completed a parenting class and complied
with many of her case plan requirements, but made only moderate progress because she
continued to test positive for drugs. In mid-January 2014, she submitted a hair follicle
for drug testing and it yielded a positive result for methamphetamine. When questioned
about the positive result, Jennifer was adamant that she had not used drugs since
November 2013. In May 2014, Jennifer tested positive for methamphetamine by hair
follicle analysis at an even higher level. She also tested positive for marijuana. She
denied using any drugs since January 2014 but said she was around people who were
smoking marijuana in April. In August, she tested negative for drugs by hair follicle
analysis. Jennifer was relieved by the results, stating that she relapsed and smoked
marijuana in July with friends. She said she only “took two puffs” and had not used any
drugs since.
       In its report for the six-month review hearing, the agency informed the juvenile
court that Jennifer enrolled in a dual diagnosis treatment program in February 2014 and
was participating and engaged in class. Despite Jennifer’s moderate progress, the agency
believed there was a substantial probability the children could be returned to her after an
additional period of reunification services and recommended the juvenile court continue
services for her.
       In September 2014, the juvenile court conducted the six-month review hearing,
continued Jennifer’s reunification services, and set the 12-month review hearing for
February 2015.
       Meanwhile, Jennifer tested positive for methamphetamine and marijuana by hair
follicle testing in October and December 2014. When confronted with the results, she
cried and stated “I only take a few hits due to being so stressed out.” In addition, she was
not regularly participating in her dual diagnosis program. Consequently, the agency

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recommended the juvenile court terminate her reunification services and set a section
366.26 hearing.
       On April 14, 2015, the juvenile court convened a contested 12-month review
hearing. County counsel called Jennifer as a witness. She testified that the social worker
recently asked her to drug test and she refused because she wanted to be tested at a
different testing facility. She did so and her attorney had the results. She did not provide
them to her social worker because her social worker indicated that she was lying so she
dropped it. She said the social worker misunderstood what she meant when she said she
“took a few hits.” She meant she took “verbal hits” as in being under attack not as in
using methamphetamine. She explained she missed her dual diagnosis classes because
she was ill but did not provide any medical documentation to substantiate her illness.
       When questioned by her attorney, Jennifer testified she last used
methamphetamine in July 2014. She said the positive drug test results from October and
December 2014 were inaccurate. Her attorney showed her an unmarked document to
refresh her memory as to a subsequent hair follicle drug test. Jennifer responded that the
document reflected the results of a hair follicle drug test she took on March 16, 2015 at
Quest Diagnostics in Coalinga. She started to read from the document, stating the results
were negative for each category of drugs. County counsel objected to her reading the
document and the juvenile court struck her answer. The juvenile court continued the
hearing until April 16, 2015.
       On April 15, 2015, the agency filed an addendum report detailing social worker
Kristi Herrera’s unsuccessful efforts to validate Jennifer’s March 16, 2015 drug test
results. Herrera contacted the Coalinga Regional Medical Center and spoke to a lab
technician who stated that the laboratory did not conduct hair follicle testing. In addition,
Jennifer was last seen at the medical center in April 2014 for an emergency room visit.
Herrera also contacted Quest Diagnostics and provided the requisition number, donor
identification, donor name, collection date and time. The staff member was unable to

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find a test with that information but asked for the accession number. She then asked
whether the collection date looked altered because she was able to locate a test completed
for Job Care in November 2014 with that accession number and donor name. She said
she was unable to provide any further information. Herrera was able to confirm with Job
Care that Jennifer paid to be tested there in November 2014 but could not provide any
further detail without Jennifer’s consent.
       The agency also provided the juvenile court an update on Jennifer’s attendance in
her dual diagnosis treatment program. She attended phase II groups on nine occasions
from early January 2015 to early April 2015. She missed three group sessions and four
individual therapy sessions during that same time frame.
       On April 16, 2015, Jennifer resumed her testimony and stated that the March 2015
negative test results were correct. She explained that she did not give the test results to
the social worker because she was moving and they were packed.
       Following argument, the juvenile court stated that it did not find Jennifer’s
testimony credible. It found that she made minimal progress, terminated her reunification
services, and set a section 366.26 hearing.
       This petition ensued.
                                       DISCUSSION
       Jennifer contends the juvenile court’s orders terminating her reunification services
and setting a section 366.26 hearing are erroneous on the following grounds:
“[i]neffective [counsel], not all parties present, and valid testimony or evidence [was]
mishandled.” Jennifer included with her petition a form authorizing the release of her
health information dated in January 2015, select pages from the agency’s September
2014 status review report, attendance sheets with stickers and a personal 2014 calendar.
Jennifer did not support each point of error with argument, citation to legal authority and
citation to the record. (Cal. Rules of Court, rule 8.452(a)(1).) She seeks an order from



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this court directing the juvenile court to vacate the section 366.26 hearing and return the
children to her custody or continue reunification services.
       As a preliminary matter, we can only review the record that was before the
juvenile court. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Of the documents that
Jennifer included with her petition, only the September 2014 status review report is part
of the juvenile court record. Consequently, we cannot review Jennifer’s authorization to
release health information, class attendance sheets and calendar. We turn to Jennifer’s
points of error.
                             Ineffective Assistance of Counsel
       Jennifer contends her trial attorney was ineffective for not presenting evidence or
testimony on her behalf. She fails, however, to meet her burden on appeal.
       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, Jennifer 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.
       Jennifer does not specify what evidence she believes her attorney should have
elicited or produced. It appears however that by her inclusion of her class attendance, she
is attempting to show that her attorney was ineffective for not producing evidence to
rebut the agency’s claim that she was not regularly attending her dual diagnosis classes.
However, as we stated, that evidence was never admitted into evidence and therefore is
not subject to our review. Further, even if probative evidence on that issue exists,
Jennifer would be hard-pressed to show that she was prejudiced by her attorney’s failure
to produce it. That is because Jennifer’s irregular attendance was only one reason the

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juvenile court ruled as it did. The juvenile court also believed that Jennifer was still
using drugs and that she falsified a test result to make it appear otherwise.
        We conclude Jennifer failed to meet her burden of demonstrating her attorney was
ineffective.
                               Essential Parties Not Present
        Jennifer contends the juvenile court erred in conducting the contested 12-month
review hearing without Julio and social worker Stephanie Wlaschin in attendance.
According to the record, Ms. Wlaschin did appear for the April 14, 2015 hearing and her
supervisor, Kristi Herrera, appeared for the continued hearing on April 16. Further, Julio
was incarcerated and not transported to the hearing. His attorney advised the court that
Julio had been denied reunification services and in essence did not have any issues to
litigate.
        Jennifer does not explain the nature of the juvenile court’s error. Where an
appellant complains of error without pertinent argument, we may consider the issue
abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.) We elect to
do so in this case and comment no further.
                            Testimony Admitted Into Evidence
        Jennifer contends the juvenile court erred in admitting testimony into evidence
over valid objections. However, she does not specify which evidence should have been
excluded. In the absence of pertinent argument, we deem the issue abandoned. (Berger
v. Godden, supra, 163 Cal.App.3d at p. 1119.)
                                      DISPOSITION
        The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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