In re A.D. CA5 ( 2021 )

Filed 6/29/21 In re A.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re A.D., a Person Coming Under the Juvenile
Court Law.
MERCED COUNTY HUMAN SERVICES F081589
AGENCY,
(Merced Super. Ct.
Plaintiff and Respondent, No. 20JP-00013-A)
v.
OPINION
M.D.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Merced County. Donald J. Proietti,
Judge.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Trimble, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Appellant (Mother) is the adoptive mother of minor A.D., who is the subject of a
dependency case. Mother challenges the dependency court’s jurisdictional/dispositional
orders on the grounds that she received ineffective assistance of counsel. We reject these
contentions and affirm.
FACTS
On February 5, 2020, the Merced County Human Services Agency (the “Agency”)
filed a dependency petition concerning A.D. pursuant to subdivisions (a) and (b)(1) of
section 300. Two days prior, the Agency had received a referral alleging that A.D. had
bruising on her left arm, back and shoulder. A.D. said Mother had hit her with a
“chancla”1 after taking 5 cookies without permission.
Mother claimed the injuries were sustained by A.D. “ ‘falling off her bike.’ ”
However, the petition alleged that the injuries were not consistent with Mother’s
explanation. An emergency room physician said A.D. had “multiple bruises in different
stages of healing (some were ‘fresh’ and some were a week old) ….”
The petition further alleged that A.D. had been now been removed from Mother’s
care on four occasions. In August 2018, A.D. was removed because Mother was arrested
and incarcerated.
In February 2018, A.D. was removed due to physical abuse. In that prior case,
like the present case, Mother had claimed A.D. fell off a bicycle, but her injuries were
inconsistent with that explanation.
In 2016, A.D. was removed from Mother “due to caretaker absence.”
1 “Chancla” is Spanish for “sandal.”
2.
Detention Report
A detention report dated February 6, 2020, appears in the appellate record.2 It
recounts that on February 3, 2020, a social worker and sheriff’s deputy responded to
A.D.’s elementary school. A.D. was initially uncooperative.
A.D. told the social worker she “ hate[s]’ ” Child Protective Services (CPS). A.D.
said her Mother had told her, “ ‘CPS takes children because they get paid to take kids.’ ”
A.D. said she would not talk “ ‘because my mom will go to jail, she will eat bad food and
her baby will get sick.’ ”
Eventually, A.D. showed the social worker “a six inch linear bruise on her left
arm, several deep purple bruises on her lower back area, bruising in varying degrees of
healing on both of her shoulders and bruising extending from her shoulder to her elbow
on her right arm.” A.D. said she had eaten five cookies for breakfast, so her Mother to hit
her with a sandal. The social worker noted that “[s]everal of the bruises observed match
bruising which appears to be caused by a sandal.” A.D said Mother “has not been using
her ‘breathing’ to stop her from getting so angry which is why she hit her.”
A.D. asked repeatedly for the social worker and sheriff’s deputy not to talk to
Mother about her injuries. A.D. said, “ ‘[Y]ou are going to take me into foster care, I
know it.’ ”
The social worker and sheriff’s deputy contacted Mother at her home. Mother
said A.D told her she fell off her bike on February 1. Mother said she has not seen any
bruising on A.D. Mother said A.D. lies and that she recalled no incident involving A.D.
eating cookies. However, Mother later said that “ ‘she was supposed to eat breakfast, not
cookies.’ ”
The detention report noted that in Mother’s prior dependency case, she claimed
A.D. had fallen off a bike yet the injuries were inconsistent with that explanation.
2 The detention report in the record has no file stamp on its cover page.
3.
Mother said she is the only person who cares for A.D. Mother denied using any
physical discipline in the home. Mother’s demeanor was flat and emotionless when
speaking with the social worker and sheriff’s deputy. When told her child was going to
be removed, Mother did not show any emotion.
A social worker took A.D. to be seen by a doctor. The attending emergency room
physician said A.D. “had multiple bruises in different stages of healing (some were
‘fresh’ and some were at least a week old) which demonstrates a pattern of non-
accidentally harming [A.D.] .…”
At the detention hearing, the court ordered A.D. removed from Mother.
Jurisdiction/Disposition Report
On March 25, 2020, the Agency filed a jurisdiction/disposition report.
The report detailed Mother’s history with child welfare. On June 2, 2016, the
Agency received a referral pertaining to Mother and A.D. According to the referral,
Mother had left for Mexico on May 3, 2016, and did not make arrangements for the care
of A.D. A.D had initially been left in the care of different relatives, and the relative
currently caring for A.D. was no longer willing and able to care for her. It turned out that
Mother had been incarcerated in New Mexico.
On February 1, 2018, the Agency received another referral pertaining to Mother
and A.D. A.D. told someone at her school that her Mother had hit her with a broom
handle because she had a potty accident. A.D. had bruises. A.D. said this had happened
in the past as well, and that her father knew about it. A.D. subsequently recanted, but the
Agency determined the allegations of physical abuse were “substantiated” and removed
A.D. from Mother’s care.
On August 20, 2018, the Agency received another referral pertaining to Mother
and A.D. Mother had become incarcerated and “did not make proper arrangements for
the minor.” Due to caretaker absence, A.D. was removed from Mother’s care.
4.
On October 1, 2018, the Agency received another referral pertaining to Mother
and A.D. A.D. informed a mandated reporter that she fell into the deep end of the pool at
her house while playing unsupervised. Though she did not know how to swim, she was
able to “kick[] very hard” and get to a side. The Agency deemed the allegation of neglect
to be “substantiated” and removed A.D.
On September 12, 2019, the Agency received another referral pertaining to Mother
and A.D. According to the referral, A.D. arrived at school upset and crying. A.D. said
her Mother had punched her in the stomach and face. The reporting party observed
redness and slight bruising near A.D.’s eye. The reporting party went to A.D.’s home
and spoke with “neighborhood children” in the area. The neighborhood children said
they were aware of the physical abuse of A.D.
On September 24, 2019, the Agency received another phone call indicating that
A.D. said her Mother slapped her for not understanding her homework. The Agency
concluded the allegations were “inconclusive” because Mother’s and A.D.’s statements
did not ultimately support the allegations. Mother denied physically abusing A.D.
The jurisdictional/dispositional report also detailed further interviews conducted
by the social worker. On February 18, 2020, the social worker interviewed A.D. A.D.
said she herself was the problem because she does not listen to her Mother and makes her
angry. When asked how she knows she makes Mother angry, A.D. replied, “ ‘My mom
would get red in the face and start yelling at me and hit me.’ ” A.D. said she gives her
Mother a lot of stress, which could cause her Mother to lose her pregnancy.
At one point during the interview, A.D.’s demeanor changed. She said “CPS” was
keeping her in foster care to make money. Eventually A.D. said she did not want to talk
anymore.
The social worker interviewed Mother on February 28, 2020. Mother described
her relationship with A.D. as “loving” but “difficult.” Mother said difficulties arose from
A.D.’s attention-deficit hyperactive disorder (ADHD) and oppositional defiant disorder.
5.
Mother said that A.D. had problems at school, including screaming at teachers, making
verbal threats, destroying personal property and hitting peers. Mother also reported that
A.D. did not want a baby sibling and would try to hurt younger kids in foster care.
Mother said she had no current criminal charges pending. She “reported she had a
federal case in New Mexico in 2016 for transporting illegal aliens, and violated her
probation in 2018 for [sic] unlawful possession of a controlled substance.”
In response to the allegations in the petition, Mother said that A.D. had taken
cookies but denied physically abusing her as a consequence. Mother said A.D. told her
on February 1, 2020, that she had fallen off a bike and that her arm hurt. Mother did not
check her for bruising because A.D. “lies a lot” and was not crying. Mother said A.D.
inflicts injuries on herself.
The report also detailed that Mother e-mailed A.D.’s teacher on September 13,
2019, and denied physically abusing A.D. Mother claimed that A.D. admitted she made
the allegations to get a break from classwork. Mother also claimed A.D. admitted the
small bruise by her eye occurred when she bumped into another student.
A.D.’s caregiver reported that A.D. would steal treats from school and at home.
They also reported A.D. would lie, steal, and not follow rules or authority. A.D. had also
been acting defiantly at school. In the 2018 school year, A.D. had received several
discipline referrals for disruptive behavior, defiance, inappropriate language, and
hitting/pushing other students.
Medical records from the emergency room were attached to the report. The
records indicate that A.D. reported she had been hit with “a broom” by Mother. A.D.
denied physical abuse occurring in the past. However, bruises on her back and arms were
“of different ages.”
The report summarized the sheriff’s deputy’s narrative, which indicated A.D. had
“severe” bruising on her right arm from her shoulder to her elbow.
6.
Finally, the report explained that Mother visited A.D. regularly, but showed
“minimal affection” during visits.
Jurisdiction/Disposition Hearing
At the jurisdiction/disposition hearing, the Department requested that the court
take judicial notice of A.D.’s prior dependency cases.3
Select Portions of Record from Prior Dependency Case
A report filed in the previous case recounted that in 2017, A.D. had admitted to
lying about being hit with a belt. Also, in 2017, A.D. claimed she had sex at school, but a
medical examination “determined” her statement was false.
Another report filed in the previous case stated that A.D. appeared comfortable in
Mother’s presence. The report also indicated that A.D.’s behavior at home had become
less disruptive because Mother engaged with A.D., utilized coping skills, and had
activities for A.D. to engage in. A report from A.D.’s Court Appointed Special Advocate
(CASA) stated A.D.’s behavior improves when placed with Mother and that A.D.
“always expresses her love and care” for Mother.
Mother’s Testimony
Mother testified that she first learned of A.D.’s bruises when a social worker came
to her house. Later, she “found out” how A.D. had obtained the bruises.4
Mother testified that A.D. had gotten bruises in the past from “playing around.”
However, “during the time when [Mother] supposedly hit her,” Mother did not observe
any bruises.
3 The court responded to the verbal request for judicial notice by saying, “All
right.” Mother proceeds under the assumption the court granted the request, and we will
do the same.
4 Mother testified that A.D. told her that on the day before her removal, she had
fallen off a bicycle. However, the court sustained hearsay objections to this testimony.
7.
Mother testified she is always working to improve as a parent and utilizes
resources – including classes – to do so.
According to Mother, A.D. “lies a lot” when she is in foster care.
Mother’s counsel sought to introduce a social behavioral report about A.D. from
2018.5 However, the trial court sustained objections to the report on hearsay and
foundation grounds. The court also stated it was “concerned” that it is a “confidential
privileged document and the presenter of the document, the holder of the document is not
the holder of the privilege.”
Mother testified that A.D. was removed from her care in February 2018 due to
allegations of physical abuse. Mother told social workers at the time that A.D. had fallen
off her bike.
On a telephone call, A.D. said she felt like she w ‘as not going to come home.
Mother admitted that she told A.D. in response: “[T]his is why…people shouldn’t lie.’ ”
Mother also testified that she was affectionate with A.D. at visits.
Mother insisted she had not physically disciplined A.D.
A.D.’s Testimony
Mother was not present for A.D.’s testimony.
A.D. testified that the bruises on her back in February were caused by Mother’s
“chancla shoe.” A.D. testified she had eaten five cookies against her Mother’s wishes, so
Mother got angry, grabbed “the hard chancla” and hit A.D. five times. Nonetheless, A.D.
testified she wanted to live with Mother.
A.D. denied every lying to her teachers or social workers.
A.M.’s Testimony
Mother’s niece, A.M., testified that she was caring for A.D. the day before she was
removed. A.D. was riding her bicycle and kept falling. A.M. told A.D. to stop, but A.D.
5 According to Mother, the report was prepared by A.D.’s school.
8.
kept going on the bike and falling. On cross-examination, A.M. testified that A.D.’s bike
had training wheels. However, A.M. said that training wheels were “messed up.”
Later, A.D. began hitting herself with a scooter. A.D. said it did not hurt.
Even though A.D. was removed the next day, A.M. claimed she did not know of
the removal for the next three months.
On cross-examination, A.M. testified that CPS removed her own siblings in
February of that year.
A.M. said there have been many “issues with truthfulness with [A.D.]” One
example she offered was that A.D. told her teacher that she fell in the pool while no one
was watching but, in fact, A.M. was present watching her.
Social Worker Zambrano’s Testimony
Social worker Kristin Zambrano testified. Zambrano testified that while A.D. had
been diagnosed with posttraumatic stress disorder and ADHD, she had not been
diagnosed with oppositional defiant disorder.
Zambrano testified that while the September 2019 referral for physical abuse was
deemed inconclusive, that only means there was not enough evidence to determine if it
was false or true.
Zambrano testified that A.D. had been in two placements since the beginning of
the dependency case. Her placement was changed “due to her behaviors in the home”
including temper tantrums.
Zambrano again stated that Mother is not affectionate with A.D.
Argument
Counsel was provided an opportunity to argue before the court after the close of
testimony. Mother’s counsel argued: “While I agree that [A.D.’s] testimony today was
very credible, and I found her testimony to be very truthful, that is not to say that with the
diagnoses and the past experiences of [A.D.] that she may very well believe that that is
what happened.”
9.
Court’s Ruling
At the conclusion of testimony and argument, the court set forth its ruling and
reasoning. The court began by agreeing with counsel that it was a “difficult situation
when you have such extreme positions being taken in a case where mother is absolutely
in denial and says that she has never, never physically disciplined or abused her child.
And yet we have an eight year old who was described by mother as being anxious, had
lost weight, with all types of personality disorders testified today with great confidence,
great poise for a child who’s almost nine years of age.”
The court noted that Mother’s counsel acknowledged A.D.’s credibility, “but
suggested the Court should do some of its own analysis, go beyond the evidence and
come up with an option that the child’s testimony is not trustworthy because of her
known diagnos[e]s ….” The court said, “I will not do that. I cannot do that. I’m judging
based on the evidence before me ….”
The court noted the photographs of A.D.’s injuries were “pretty bad.” The court
expressed “shock[] at the lack of empathy that was expressed through the entire
testimony of [Mother] where she could not be troubled to even check her daughter’s body
when she said her daughter was complaining of shoulder pain.”
The court said it was relying “significantly” on the report of Dr. McClaren who
examined A.D. in early February. The court specifically pointed to the report’s objective
findings that there were four areas of bruises of varying sizes and varying states of
healing. The court noted Dr. McClaren described bruising that “likely occurred at
different times and different places.”
Ultimately, the court stated that it was “convinced that there has been injury to this
child that occurred at the hands of [Mother] despite her vehement denials that she never
laid a finger on her daughter.” The court found A.D. was a person described by
subdivisions (a) and (b) of Section 300 and declared her a dependent of the court. The
10.
court denied reunification services to Mother under Welfare and Institutions Code section
361.5, subdivision (b)(3).6
DISCUSSION
Mother contends her counsel was ineffective.
Law
All represented parties in a dependency case are entitled to “competent” counsel.
(§ 317.5, subd. (a).) To prevail on a claim that counsel was prejudicially incompetent, a
parent must show (1) that counsel failed to act in a manner to be expected of reasonably
competent attorneys practicing in the field of juvenile dependency law and (2) that the
claimed error was prejudicial. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667–
1668.)
To satisfy the first prong, it must be shown that “counsel’s omissions were not the
result of a reasonable tactical decision. [Citation.]” (In re Merrick V. (2004) 122
Cal.App.4th 235, 255.) For example, whether to call certain witnesses at trial is a matter
of tactics, which reviewing courts rarely second-guess. (See People v. Mitcham (1992) 1
Cal.4th 1027, 1059; see also People v. Bolin (1998) 18 Cal.4th 297, 334; In re Kerry O.
(1989) 210 Cal.App.3d 326, 333.) Similarly, with regards “to whether certain witnesses
should have been more rigorously cross-examined, such matters are normally left to
counsel’s discretion and rarely implicate inadequacy of representation. [Citations.]”
(People v. Bolin, at p. 334.)
If there is a conceivable, reasonable explanation for counsel’s conduct, the claim
of ineffective assistance fails on appeal. (E.g., In re Emilye A. (1992) 9 Cal.App.4th
1695, 1716.) Put differently, if counsel’s alleged deficiencies “are not apparent on the
record, review by direct appeal is inadequate.” (In re Carrie M. (2001) 90 Cal.App.4th
6All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
11.
530, 535.) In such circumstances, the party claiming ineffective assistance of counsel
must proceed by way of a petition for writ of habeas corpus. (Cf. id. at pp. 533–535.)
Only when there could be no conceivable purpose for counsel’s act or omission may an
appellant obtain relief. (People v. Lewis (2001) 25 Cal.4th 610, 674–675.)
Analysis
We will now address each of the ways in which Mother alleges counsel was
ineffective.
Mother argues her counsel failed to challenge A.D.’s credibility through
noninterested witnesses, including: the social workers who prepared the reports from the
2018 dependency case; the emergency room physician; foster parents; or A.D.’s teacher.
However, it is entirely conceivable that these were tactical decisions by counsel. Counsel
could have reasonably concluded that while these witnesses might have offered some
helpful testimony, they also could have provided testimony harmful to Mother’s case.
Counsel could have determined that any incremental benefit that would accrue from
undermining A.D.’s credibility was not worth the risk that these witnesses would have
also offered persuasive, credible testimony about topics such as the extent of A.D.’s
injuries, A.D.’s statements about Mother, and/or examples of A.D. telling the truth. On
the present record, we simply cannot conclude counsel acted deficiently in this regard.
Mother also complains that counsel did not question social worker Zambrano
about portions of the reports from the 2018 dependency case. However, there are
conceivable explanations for this “omission.” Perhaps counsel knew that Zambrano did
not prepare the reports from the 2018 case and would lack foundation to testify about
them. Or perhaps counsel knew or had reason to believe Zambrano had additional
information about the events described in the 2018 reports, which would have
undermined their effectiveness in impeaching A.D.’s credibility. Again, because there
are conceivable explanations for counsel’s behavior, Mother cannot prevail on direct
appeal.
12.
Similarly, Mother contends counsel was ineffective for failing to question
Zambrano about a report from the foster parent that A.D. has problems with lying. But
that statement from the foster parents was included in the report; it speaks for itself.
Moreover, there is no reason to believe that Zambrano would have anything useful to say
about someone else’s experience with A.D.’s lying.
Mother also contends it was improper for counsel to acknowledge that A.D.
testified credibly. Again, this can be explained as a reasonable tactical decision. Counsel
suggested that while A.D.’ testified credibly, the testimony could still have been
inaccurate due to her diagnosed conditions. Counsel could have made a tactical decision
that, given A.D.’s apparently credible testimony, the best line of “attack” was not an
accusation of lying but instead a suggestion that A.D. misstated facts without intent to
deceive. Such an argument would be a reasonable exercise of tactical discretion by
counsel.
Mother contends that counsel inadequately contested the issue of whether she
should be bypassed for reunification services. Specifically, Mother complains that
counsel did not cross-examine social worker Zambrano about statements favorable to
Mother contained in a prior report. However, the extent to which a witness should be
cross-examined “are normally left to counsel’s discretion and rarely implicate inadequacy
of representation. [Citations.]” (People v. Bolin, supra, 18 Cal.4th at p. 334.) In any
event, the court was aware of the statements, having granted judicial notice of the prior
dependency files. On the present record, there is no reason to believe Zambrano’s
testimony regarding the statements would have yielded anything helpful to Mother’s
case.
Mother also argues that counsel was ineffective for failing to call the social worker
who prepared reports in the prior dependency case, the child’s CASA, or employees from
Mother’s service provider, Aspiranet. However, whether to call certain witnesses at trial
is a matter of tactics, which reviewing courts rarely second-guess. (See People v.
13.
Mitcham, supra, 1 Cal.4th at p. 1059; see also People v. Bolin, supra, 18 Cal.4th at
p. 334.) In any event, this contention cannot be sustained on direct appeal. Again, it
remains entirely conceivable that counsel knew, or reasonably believed, that the
testimony of such witnesses, on balance, would not have been helpful to Mother’s case.
That is, counsel could have had information suggesting that some of the anticipated
would have been harmful to Mother’s case (even if other parts would have been helpful).
Mother cannot prevail on the present record.
Finally, Mother notes that counsel did not refer to the prior reports of the Agency
or CASA in argument to the dependency court. Again, this is a tactical matter left to
counsel. Counsel could have made a reasonable tactical decision to focus her argument
solely on what she considered her strongest points. Counsel could have concluded that
by excluding arguments she considered “weaker,” she could bolster her credibility before
the judge and improve the chances her stronger arguments would prevail. Because there
are conceivable, reasonable explanations for counsel’s action, Mother cannot prevail on
direct appeal.
DISPOSITION
The orders are affirmed.
POOCHIGIAN, J.
WE CONCUR:
LEVY, Acting P.J.
SNAUFFER, J.
14.