Filed 9/12/16 Tiffany F. v. Superior Court CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

TIFFANY F.,
                                                                                           F073854
         Petitioner,
                                                                          (Super. Ct. Nos. 517233, 517234,
                   v.                                                             517235, 517232)

THE SUPERIOR COURT OF STANISLAUS
COUNTY,                                                                                  OPINION
         Respondent;

STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,

         Real Parties in Interest.



                                                   THE COURT*
         ORIGINAL PROCEEDING; petition for extraordinary writ review. Ann Q.
Ameral, Judge.
         TIFFANY F., in pro. per. for Petitioner.
         No appearance for Respondent.
         John P. Doering, county Counsel, and Maria E. Ratliff, Deputy County Counsel
for Real Party in Interest.
                                                        -ooOoo-



*        Before Kane, Acting P.J., Poochigian, J. and Franson, J.
       Tiffany F. (mother) in propria persona seeks extraordinary writ relief from the
juvenile court’s orders issued at a contested 12-month review hearing terminating her
reunification services and setting a Welfare and Institutions Code section 366.261 hearing
as to her four minor children. She contends the court relied on misinformation in ruling
and must therefore return the children to her custody or reinstate reunification services.
We deny the petition.2
                    PROCEDURAL AND FACTUAL SUMMARY
       In March 2015, the Stanislaus County Community Services Agency (agency) took
mother’s then 10- and seven-year-old sons and eight-year-old twin daughters into
protective custody after mother refused to separate herself and the children from her then-
boyfriend Marcos B. For three years prior to taking this step, the agency had received
reports that mother and Marcos used drugs and that Marcos hit and verbally abused the
children and engaged in domestic violence with mother. One of the daughters stated that
mother had not eaten or slept in several days out of fear that Marcos would hurt them
during the night.
       In June 2015, the juvenile court exercised its dependency jurisdiction over the
children and ordered them removed from parental custody. The court denied the
children’s father reunification services and ordered mother to participate in parenting
instruction and mental health, domestic violence and substance abuse services. The court
also ordered that the children were not to have any contact with Marcos. The agency
placed the children together in foster care.
       Mother did not participate in reunification services and continued to engage in
domestic violence with Marcos, who drank excessively and used drugs. In February

1      All statutory references are to the Welfare and Institutions Code.
2      Real party in interest filed a motion asking this court to dismiss mother’s petition
for extraordinary writ for failure to comply with California Rules of Court, rule 8.452.
We deny the motion.


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2016, they were married. In addition, mother refused to leave him or limit her contact
with him. She repeatedly asked the social worker if the juvenile court would allow her to
reunify with her children while living with Marcos despite being told each time the court
would not allow it. She also defied the court’s no-contact order between Marcos and the
children by allowing him to hide in the bathroom during visitation so that he could see
them.
        Meanwhile, the children were no longer placed together but were making progress
in their respective homes. Mother’s youngest son had to be removed from his foster care
placement because he was engaging in very disturbing hoarding behavior. He was placed
with relatives and was adjusting to their home. The relatives were willing to offer him
foster care until he turned 18 years old. Mother’s oldest son was placed with a foster
mother who was willing to provide him a home until he was 18. He told the social
worker he was afraid of Marcos because he beat him and his mother. He was afraid that
Marcos would harm his foster family. The agency discussed placing the daughters with
relatives who had expressed an interest but were afraid of mother. They said they might
be more willing to consider placement once the children were settled.
        In its report for the 12-month review hearing, the agency recommended the
juvenile court terminate mother’s reunification services and proceed to permanency
planning.
        The juvenile court conducted the contested 12-month review hearing in June 2016.
Mother testified she completed a group parenting class, was abstaining from drug use and
had been participating in one-on-one domestic violence counseling for six months.
Mother conceded that the children were harmed by seeing Marcos hit her but she did not
believe that her oldest son told the social worker that Marcos hit him and would not
believe it unless her son told her personally. She believed she could protect the children
if they were returned to her custody and believed they would be safe around Marcos



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because he was no longer drinking alcohol and had been clean and sober for a year. She
did not agree with the agency’s report that Marcos hurt the children.
       At the conclusion of the hearing, the juvenile court found that it would be
detrimental to return the children to mother’s custody. The court also found that the
agency provided her reasonable reunification services but that she made minimal
progress, noting that she was only in the initial stages of domestic violence treatment.
The court further found there was not a substantial probability the children could be
returned to her in the three months remaining before the 18-month review hearing and
terminated her reunification services.
                                         DISCUSSION
       Mother contends the agency falsely reported that Marcos harmed her children and
that her attorney did not properly defend her. As a reviewing court, we do not reweigh
the evidence on which the juvenile court made its findings and orders. Rather, our role is
to determine whether substantial evidence supports the court’s findings and orders. In
this case, we conclude that it does.
       Once the juvenile court removes a child from parental custody and orders a plan of
reunification, it is required to conduct review hearings at six-month intervals to determine
whether the child can be safely returned to the parent and, if not, whether to continue
reunification efforts. The court must return the child to parental custody unless it would
be detrimental to the child.
       In this case, the juvenile court found that it would be detrimental to return the
children to mother’s custody because she maintained a relationship with Marcos. Despite
knowing that she could not maintain a relationship with Marcos and reunify with the
children, mother refused to separate from him and even married him. In addition, she
acknowledged that she harmed the children by engaging in domestic violence with
Marcos. By remaining with Marcos knowing that it was harmful to the children, mother
gave the court no choice but to find it would be detrimental to return them to her custody.

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       Mother does not challenge the evidence supporting a finding that her relationship
with Marcos poses a threat of detriment to the children. Instead, she contends there was
no evidence he physically harmed them and claims the agency’s statement in its report
that he did is false. The problem with mother’s contention is that the agency’s report was
admitted into evidence and her attorney did not object. Consequently, her attorney
forfeited her right to challenge the statement on appeal. Further, even if the agency
falsely reported that Marcos physically abused the children and that evidence was
excluded from the analysis of detriment, the juvenile court could still find their return
would be detrimental based strictly on the fact that it would expose them to domestic
violence.
       The juvenile court, having found detriment, also decided not to continue mother’s
reunification services another three months to the 18-month review hearing. The court
did so having found there was not a substantial probability the children could be returned
to mother in that short timeframe. In order to find a substantial probability of return, the
juvenile court must find that the parent consistently and regularly contacted and visited
the child, the parent made significant progress in resolving the problem that required the
child’s removal from the home and demonstrated the capacity and ability to complete the
objectives of his or her treatment plan and to provide for the child’s safety, protection and
physical and emotional well-being. (§ 366.21, subd. (g)(1).) The juvenile court found
that mother regularly contacted and visited the children but that she waited too long to
engage in her other services. As a result, she made minimal progress in resolving the
domestic violence problem and was actually demonstrating an unwillingness to provide
the children a safe home by remaining with Marcos.
       We conclude in light of the foregoing substantial evidence supports the juvenile
court’s findings with respect to detriment and substantial probability of return.
       Mother further contends her trial attorney did not properly defend her. In essence,
she claims she was deprived of effective assistance of counsel. The record does not

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support her claim. 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 of ineffective assistance of
counsel, mother would have to show that but for counsel’s performance, the juvenile
court would have returned the children to her custody or continued its order for
reunification services.
       As we explained above, substantial evidence supported the juvenile court’s
findings with respect to detriment and substantial probability of return. Consequently,
there is no basis for concluding the juvenile court would have ruled differently.
       Once the juvenile court determines, as it did here, it cannot safely return a child to
parental custody and that the parent cannot reunify with the child within the statutory
timeframe, the juvenile court has no choice but to terminate reunification services and set
a section 366.26 hearing. (§ 366.21, subd. (g)(4).) We find no error.
                                            DISPOSITION
       The petition for extraordinary writ is denied. This opinion is final forthwith as to
this court.




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