Karen C. v. Sup. Ct.

Filed 11/30/05 Karen C. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KAREN C., Petitioner, v. THE SUPERIOR COURT OF MARIPOSA COUNTY, Respondent, MARIPOSA COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party In Interest.

F048917 (Super. Ct. Nos. JV1992A, JV1992B, JV1992C) O P I N I O N

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Wayne R. Parrish, Judge.

Deborah A. Bennett, for Petitioner.

No appearance for Respondent.

Allen, Polgar, Proietti & Fagalde and Michael A. Fagalde, for Real Party In Interest.

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This extraordinary writ petition arises from a contested 12-month review hearing at which the juvenile court terminated petitioner’s reunification services and set a Welfare and Institutions Code section 366.26 hearing^[1] as to her three small children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In June 2004, the Mariposa County Department of Human Services (department) removed petitioner’s then four-year-old and three-year-old sons and 11-month-old daughter from what would later be described as one of the worst “dirty house” cases on record in the county. The home smelled of urine and mold throughout. The rooms were cluttered and dirty. The beds had no linen and were inaccessible. Worse still, the carpet was soaked with water and sewage from the toilets which were backed up. There was drug paraphernalia, pornography and numerous small objects accessible to the children. Deputy sheriffs arrested petitioner and the children’s father, R., for child endangerment and drug charges and the Public Health Department declared the home uninhabitable.

The department filed a dependency petition on the children’s behalf and the juvenile court ordered them detained. At the jurisdictional hearing, the court found the allegations true and, at the department’s recommendation, ordered both parents to complete psychological evaluations to determine if they were capable of benefiting from reunification services. The court set the dispositional hearing for August 30, 2004.

At the dispositional hearing on August 30, 2004, the court ordered a plan of reunification for petitioner and R. Petitioner’s case plan required her to maintain a clean and safe home and complete a parenting program. Her case plan also required her to participate in outpatient therapy to address anger management and any other services recommended by the therapists. The court also set a three-month interim review hearing on October 25, 2004, and a six-month review hearing on February 7, 2005.

Within days after the dispositional hearing, the department received the results of the psychological evaluations. The psychologist diagnosed R. with an antisocial personality disorder and petitioner with a dependent personality disorder, which the psychologist concluded rendered them unable to care for their children. However, while the psychologist could not recommend any services that could restore R.’s ability to care for his children, the psychologist suggested that petitioner could benefit from a residential program that offered domestic violence counseling and substance abuse treatment. The psychologist specifically stated:

“It is my recommendation that [petitioner] should be assessed by [an agency] that provides domestic violence counseling and treatment. If she qualifies for and accepts residential services that include a substance abuse component, she can begin a course of treatment that could help her, within a period of six months, toward independent thinking and decision making in the best interest of her children.

“If she does not qualify for or does not accept residential services she will be left struggling with depressive, hypomanic and oppositional characteristics, conduct problems, and methamphetamine dependency, in the context of a dependent relationship with a dysfunctional man, In such a case, no services could restore her ability to control her children adequately within a period of six months.”

After receiving the psychologist’s report, the department referred petitioner for outpatient therapy. The department also reported the psychologist’s conclusions and recommendations in its interim report and recommended the court continue the existing plan in effect.

On October 25, 2004, the court conducted the three-month interim review hearing. The parties, including counsel for petitioner, submitted on the department’s recommendation to retain the existing reunification plan in effect. The court found petitioner was provided reasonable services and retained the six-month review hearing on calendar for February 7, 2005.

The six-month review hearing was continued several times and conducted on March 14, 2005. In the interim, the department reported that petitioner and R. continued to use drugs and neither one sought therapy for their personality disorders. They separated and were in the process of divorce and petitioner had a live-in boyfriend who was on probation for a then-recent incident of domestic violence. R. was awaiting sentencing in a criminal matter and petitioner and R.’s two sons were exhibiting signs of severe emotional damage. In its six-month status review, the department recommended the court terminate reunification services for both parents.

At the six-month review hearing on March 14, 2005, petitioner’s attorney informed the court that petitioner began drug treatment in December 2004 under the auspices of the drug court and had since remained drug-free and compliant with the program requirements. In light of petitioner’s progress, her attorney asked the court to continue her services.

County counsel argued the court should terminate petitioner’s services, citing the psychologist’s recommendation she participate in a residential program and her failure to seek any mental health treatment. Petitioner’s attorney countered that petitioner demonstrated success in an outpatient treatment program, proving that she did not need residential treatment.

After argument, the court found petitioner was provided reasonable services and ordered an additional six months of services for her. The court terminated reunification services for R. The court also ordered petitioner to complete a mental health assessment that next week. The court set the 12-month review hearing for July 25, 2005.

Over the next six months, petitioner continued to progress in drug treatment and her prognosis was considered good. However, she still had not scheduled an appointment for a mental health assessment. In addition, her inability to control the children during visitation continued to expose them to danger. On one occasion, the boys found some matches and were found in a corner trying to light them. In its 12-month status review, the department recommended the court terminate petitioner’s services and set the matter for permanency planning.

Petitioner challenged the department’s recommendation and a contested 12-month review hearing was conducted on September 12, 2005. It was undisputed at trial that petitioner made progress in drug treatment. The issue was whether the department failed to provide reasonable services by not referring petitioner for residential treatment as recommended by the psychologist. The caseworker testified that she referred petitioner many times for outpatient therapy but only a therapist could refer petitioner for residential treatment.

Petitioner testified she did not pursue therapy during the first six months of services because she was using drugs. After she was court-ordered to complete a psychological assessment at the six-month review hearing, she made several unsuccessful attempts to schedule an intake assessment. Petitioner advised the caseworker of her difficulty scheduling the assessment but testified that the caseworker did not intervene and petitioner did not make any further efforts to pursue therapy on her own. She stated she was involved in drug court and did not have time to participate in a residential program.

Petitioner also admitted knowing that her boyfriend had a criminal record and served a prison sentence. She was also aware that he was convicted in October 2004 and was on probation for battering his ex-girlfriend. She stated his circumstances concerned her but that he had never attempted to strike her.

After argument, the court found petitioner was provided reasonable services. The court commended petitioner on her recovery but concluded that she had not made progress with respect to her mental health problems. Consequently, the court terminated reunification services and set a section 366.26 hearing for December 19, 2005. This petition ensued.

DISCUSSION

Petitioner argues, as she did at trial, that the department should have modified her case plan to include residential treatment as recommended by the psychologist. Since it did not, she argues, she was denied reasonable services and the juvenile court erred in terminating her services. We conclude she waived the issue for our review.

All orders subsequent to the dispositional order in dependency proceedings are directly appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Unappealed postdisposition orders are final and binding. (Ibid.)

In this case, the time to argue that reasonable services for petitioner must include residential treatment was either at the three-month review hearing on October 25, 2004, or by direct appeal from the court’s reasonable services finding made at that hearing. However, petitioner did not do either. In fact, her attorney submitted on the department’s recommendation to retain the original case plan in effect. In so doing, her attorney assented to the terms of the plan on petitioner’s behalf and waived her right to challenge the reasonableness of the plan on appeal.

To the extent trial counsel was arguably ineffective for not arguing for a modified plan either at the three-month review hearing or by filing a section 388 petition,^[2] we find no evidence of prejudicial effect. 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, petitioner would have to show that, but for counsel’s failure to argue she needed residential treatment, the court would have modified the case plan to include it and petitioner would have benefited from the treatment and reunified with her children.

Here, there is no evidence that the court would have modified petitioner’s case plan based on the psychologist’s recommendation. Rather, as the court stated at the 12-month review hearing, it was not compelled to follow the psychologist’s recommendations. Rather, the court considered the psychological report a tool for use in determining what services to provide. Moreover, there is no evidence that petitioner would have entered an inpatient program. She was already involved in a live-in romantic relationship and she testified at trial that she did not have time for a residential program. Finally, there is no evidence petitioner would have benefited from a residential program. Apart from her drug abuse, her dependent personality disorder posed the most significant danger to her children yet she refused to seek therapy for it. As a result, she traded one abusive relationship for another potentially abusive relationship and she still lacked the skills to care for and protect her children. Therefore, any claim of ineffective assistance of counsel would fail for lack of prejudice. Based on the foregoing, 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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^*Before Dibiaso, Acting P.J., Harris, J., and Cornell, J.

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

^[2] Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.