Filed 5/20/15 J.L. v. Super. Ct. CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


J.L.,                                                                      2d Civil No. B260933
                                                                      (Super. Ct. No. J070107, J070108,
     Petitioner,                                                              J070109, J070110)
                                                                               (Ventura County)
v.

THE SUPERIOR COURT OF VENTURA
COUNTY,

     Respondent;

VENTURA COUNTY HUMAN
SERVICES AGENCY,

     Real Party in Interest.


                   J.L. (Mother) has filed an extraordinary writ petition to set aside orders of
the juvenile court sustaining juvenile dependency petitions (Welf. & Inst. Code, § 300),1
bypassing reunification services (§ 361.5, subd. (b)(6)), and setting a section 366.26
hearing. Her children, A.F., C.G., L.L. and W.L., are dependent children coming under
the juvenile court law. We conclude, among other things, that Mother has not shown that
she received ineffective assistance from her counsel. The petition is denied.




1
    All statutory references are to the Welfare and Institutions Code unless otherwise stated.
                                           FACTS
              Mother has four young children, A.F., C.G., L.L. and W.L. The Ventura
County Human Services Agency (HSA) filed a juvenile dependency petition alleging she
"failed to protect" her young son A.F. "from the violent behavior" of Cody G. who is
Mother's boyfriend. It also filed juvenile dependency petitions involving her other three
children. In a report to the juvenile court, HSA said Cody G. is "an alleged father of"
C.G., L.L., W.L.
              In April 2011, Mother told the sheriff's department that she had been living
with Cody G. who had physically assaulted her. She said he also had physically
assaulted her in four prior incidents. In an incident report, a sheriff's deputy said Mother
"did not want to report the incidents, and thought she could just 'sweep it under the rug.'"
              The Ventura County Superior Court issued a restraining order prohibiting
Cody G. to be within 100 yards of Mother and A.F.
              In December 2011, Mother filed an application for a restraining order. She
said Cody G. had choked her and had "violently grab[bed]" A.F., her five-year-old son.
She said she feared for her life and her "children's" lives. Mother was 16 weeks pregnant
at the time of this incident.
              Mother subsequently moved to Oregon. She allowed Cody G. to move in
with her and her children.
              In March 2013, Cody G. punched A.F. multiple times "in the groin." He
also hit the child on the left side of his face and other parts of his body. A police officer
saw red marks on A.F.'s face. There were also marks on his neck and shoulders. His
genital area was "black and blue from the beating." The child was taken to the hospital.
Photographs of the child showed injuries to various parts of his body. The Oregon
Department of Human Services stated the child had "significant bruising to his penis,
scrotum and legs."
              Mother told a law enforcement officer that 10 days before the attack on
A.F., Cody G. had "grabbed her by the arm, pushed her to the ground and held her


                                              2
down." A.F. witnessed that attack. He said, "'[M]y mom was up against the wall so that
she could protect the baby in her belly.'"
              The Oregon District Attorney's Office filed criminal charges against
Cody G. He was arrested for assault. An Oregon state court issued a "no contact" order
prohibiting him from contacting A.F. Cody G. did not appear for a court hearing on his
criminal case. He left the state of Oregon. Mother told a police officer that she "did not
think [Cody G.] would follow any no contact order." She said that "[he] has a history of
domestic violence."
              Mother moved to an apartment in Arizona. A.F. told a social worker that
Cody G. came to that apartment. He said Mother moved the family to a hotel and
Cody G. "came to the hotel room when we were in Arizona."
              Mother moved from Arizona to California. In 2014, Mother told an HSA
social worker that Cody G. "comes over and sees the children." The social worker asked
why she was "back together with Cody after what had occurred in Oregon." Mother said
that "they are still trying to figure everything out." She told a social worker that A.F.
"has been known to lie, he is only 7 years old." At this time Mother was living in the
home of Cody G.'s mother. A.F. told the social worker that Cody G. "lives with them."
              In August 2014, Mother contacted the Oregon District Attorney's Office.
In an e-mail to a prosecutor she said, "In regards to the falsified charges, how is this
supposed to stand in court? I will testify against DA and police officials in order to
protect my own." She said, "I myself was never a victim to domestic violence by Cody."
              The Oregon prosecutor told Mother that "there are warrants out for
[Cody G.]," and the criminal cases against him cannot be resolved "[u]ntil [he] is
apprehended on his warrants, or chooses to turn himself in . . . ."
              HSA requested the juvenile court to bypass reunification services for
Mother. (§ 361.5, subd. (b)(6).) It said the bypass provision applies to "the actual
perpetrator" of "severe physical harm to the child or the child's siblings" and "to a parent
who consents to the abuse by an act or omission of the parent." HSA said Mother knew
the risk to her children because of Cody G.'s violence, but she "continued to allow him to

                                              3
live with her and her children and even left her children alone with [him]." Cody G.'s
"violent nature was not a thing of the past when [A.F.] was assaulted by him. Just ten
days before [Mother] had also been abused by [Cody G.]. . . . She articulated to the court
that she believed [Cody G.] was a risk to her own and her children's lives."
                At the contested hearing, Mother was asked, "[D]o you deny that [Cody G.]
physically abused [A.F.] while [Cody G.] was living with you in Oregon?" She
answered, "I was not there. I could not say." She said she was not "concerned that [Cody
G.] would hurt [the children]" and he never hit her. When asked why she obtained a
restraining order against Cody G. in 2012, she said, "I don't remember exactly word for
word what I reported, so I wouldn't be able to state that today."
                Mother also testified she believed A.F.'s allegations about Cody G. and
believed he "abused" her son. She was asked, "[S]o why did you let [Cody G.] have
access to your son, to be around your son, after he beat your son?" She said to "allow for
services . . . and allow for growth and ultimately reunification for healthy
relationships . . . ."
                The juvenile court found the four children to be "wards" of the juvenile
court and that HSA "met its burdens for the jurisdictional stage of this case." It found the
evidence showed Mother should be bypassed for reunification services. (§ 361.5, subd.
(b)(6).) She did not "protect" her children. She "failed" in her duty to prevent the
children from being in "the presence of influences that could hurt them mentally,
psychologically, emotionally and physically." It said, "It appears to be clear that whether
it's an emotional attachment, the financial dependence, the love you have for [Cody G.]
. . . , you cannot keep yourself from him . . . and the Court has serious problems with that
position which endangers your younger children as it already had to his detriment
[A.F.]."
                The juvenile court made negative credibility findings about Mother's
testimony. It said, "[T]he Court could certainly observe mother's testimony and how hard
it was for her to concede. The answers repeatedly were, 'I wasn't there. I didn't see it.'"


                                              4
The court told Mother that she continues "to minimize what happened, to want to sweep
it under the rug, to deny it and be in a state of denial for the danger of [her] children . . . ."
                                         DISCUSSION
                               Ineffective Assistance of Counsel
               Mother contends the orders of the juvenile court must be set aside because
she received ineffective assistance of counsel. We disagree.
               "Where the ineffective assistance concept is applied in dependency
proceedings the appellant must" show 1) "'counsel's representation fell below an
objective standard of reasonableness . . . under prevailing professional norms,'" and 2)
there is a "'reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.'" (In re Emilye A. (1992) 9 Cal.App.4th
1695, 1711.)
               Mother contends she was denied effective assistance of counsel because her
lawyer was not qualified to represent her because she "was not trained in the area of
dependency law." She suggests the juvenile court should have appointed another
attorney who was a specialist in that area of law. She states, "[T]he court made no
inquiry of [counsel] regarding her competency to handle a juvenile dependency matter."
               But Mother has not cited to evidence relating to her counsel's training.
Moreover, representation by an attorney who is not a specialist does not mean she
received ineffective assistance. Mother has not shown her counsel lacked the necessary
qualifications to represent her. She does not dispute that she was represented by a
licensed California attorney. "[T]he admission of an attorney to the bar establishes that
the State deems him [or her] competent to undertake the practice of law before all our
courts, in all types of actions." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559,
italics added.)
               Mother contends the record shows that her counsel did not understand the
relevant issues. We disagree. Her attorney objected to the HSA recommendation that
she be bypassed for reunification services. She introduced testimony to show the HSA
recommendation was wrong. She presented evidence to challenge statements made in

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HSA reports and police reports. She asked Mother questions to present evidence about
her participation in parenting classes and counseling. She introduced exhibits to support
Mother's testimony. In closing argument, she cited case law and statutes. She gave a
factual summary to support her claim that Mother should not be subject to the bypass
provision.
              Mother claims an example of her counsel's ineffective performance was her
attempt to introduce several declarations that were not "relevant [to the] issues before the
court." But the juvenile court admitted those declarations and overruled HSA's
objections. Counsel introduced declarations showing "proof" of Mother's "completion of
the parenting class" and "participation in counseling." That was for the purpose of
corroborating Mother's testimony and supporting her credibility as a witness. The court
said it would give the various declarations counsel presented "the weight . . . due on the
probative issues to be proved today . . . ." It said the declarations involved "comments
about character and parenting skills of the mother." Those were relevant issues.
              Mother notes that during her direct examination her counsel said, "[C]an
you guys give me a break here?" She made this remark in response to a series of
sustained relevancy objections to a short line of questioning during Mother's direct
testimony. Counsel had a right "to protest" what she considered to be "erroneous" rulings
on objections. (Smith v. Superior Court, supra, 68 Cal.2d at p. 560). She had a right to
object to an opponent's repeated objections which she felt were a tactic to interrupt her
questioning of her witness. She should not, however, have used the phrase she selected
to voice her objection. But this involved only a small part of the presentation of Mother's
case. As HSA notes, it also made a number of objections that the court overruled.
Mother has not shown how sustaining of a few relevancy objections to a short line of
questioning negatively impacted the presentation of her case.
              Mother contends her counsel did not know the procedure for making
objections to hearsay contained in the HSA status reports. (§ 355.) She claims she
therefore did not make objections that would have forced "HSA to produce the source of
the hearsay statements" in those reports.

                                             6
              HSA claims Mother's argument is based on speculation. "Unless the record
affirmatively establishes counsel had no rational tactical purpose for the challenged act or
omission, we must affirm the judgment." (In re Kristen B. (2008) 163 Cal.App.4th 1535,
1541.)
              Mother did not obtain a declaration from her trial counsel. Consequently,
she has not produced a specific statement regarding counsel's trial strategy. Nor is there a
showing in this record about whether counsel felt objections should have been made to
any specific HSA reports.
              Instead, Mother relies on a general statement her counsel made during
closing argument. Her attorney asked the court to make findings based on Mother's
testimony. She then made a negative remark about the HSA documents. She said, "And
perhaps it's too late now to object to all the stuff that gets attached to a social services
report, but--I don't know. In superior court, none of that gets allowed in without, you
know, foundation, and I just think anything goes. You can throw anything in." (Italics
added.) This statement is conclusory. It does not identify any specific HSA document
that counsel felt was inappropriate. She was simply asking the court to give greater
weight to Mother's testimony than to HSA's documents. Her remarks were made for
Mother's benefit.
              Mother's trial counsel did not make any objection to the HSA reports when
they were initially introduced at the beginning of the hearing. Her statements appear to
be commentary on what she considered to be relaxed evidentiary rules for admission of
evidence in juvenile court. (§ 355.) Her statements do not show she lacked knowledge
of the grounds for evidentiary objections.
              HSA contends that even if Mother had shown ineffective assistance, the
result would not change. We agree. Mother makes the conclusory assertion that had her
counsel known about section 355 she would have used it "to prevent the admission of
hearsay evidence."
              But as HSA notes, Mother's petition does not "identify" 1) "any adverse
evidence that would have been excluded," or 2) "any evidence helpful to her case that

                                               7
would have been admitted if she were represented by" different counsel. A conclusory
assertion that the result would have been different does not meet Mother's burden to
make an adequate showing of the specific evidence that would lead to a "reasonable
probability" of a different result. (In re Emilye A., supra, 9 Cal.App.4th at p. 1711.)
              Moreover, Mother's suggestion that a section 355 objection would have
barred the admission of hearsay evidence in HSA reports is not accurate. The statute
provides that if a party "raises a timely objection to the admission of specific hearsay
evidence contained in a social study, the specific hearsay evidence shall not be sufficient
by itself to support a jurisdictional finding . . . unless the petitioner establishes one or
more of the following exceptions . . . ." (§ 355, subd (c)(1), italics added.) Mother's
petition does not mention the specific hearsay she would have objected to, whether there
was corroborating evidence to support it, or whether any of the statutory exceptions
applied to allow admission of that evidence.
              The limitation of the use of hearsay in HSA reports does not apply where:
1) the evidence falls within a recognized exception to the hearsay rule; 2) the declarant is
"a minor under 12 years of age who is subject to the jurisdictional hearing"; 3) the
declarant is a peace officer, social worker or health practitioner; or 4) where the hearsay
declarant is "available for cross-examination." (§ 355, subd. (c)(1)(A), (B), (C) & (D).)
              Consequently, A.F.'s statements were admissible because he was under 12
years of age and he is subject to the jurisdiction of the juvenile court. As HSA notes, the
"attachments" to "the social worker reports," which were admitted into evidence,
including "police reports, social worker reports from Oregon, medical reports, court
orders or mother's own emails and writings," were also admissible under section 355.
(§ 355, subd. (c)(1)(A), (B) & (C).) Mother has not named the individuals who were not
available for cross-examination.
              Moreover, Mother has not shown that the juvenile court's findings to bypass
reunification services were based on anything involving the performance of her counsel.
Those findings were based on the evidence of Mother's conduct, the court's concern about
her lack of credibility and actions that subjected the children to a threat to their health and

                                               8
safety. Mother's petition does not raise a specific challenge to the sufficiency of the
evidence supporting the juvenile court's findings.
              The petition is denied.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.
We concur:



              YEGAN, J.



              PERREN, J.




                                             9
                                Bruce A. Young, Judge

                           Superior Court County of Ventura

                          ______________________________


              Law Offices of Vincent W. Davis & Associates, Stephanie M. Davis for
Petitioner.
              No appearance for Respondent.
              Leroy Smith, County Counsel, Jaclyn Smith, Assistant County Counsel, for
Real Party in Interest.




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