M.W. v. Superior Court CA4/1 ( 2021 )

Filed 7/13/21 M.W. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
M.W. et al., D078707
Petitioners, (San Diego County
Super. Ct. Nos. J519180C, D)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate after a reference to a Welfare
and Institutions Code section 366.26 hearing. Rohanee Zapanta, Judge.
Petitions denied.
M.W., in pro. per., for Petitioner.
No appearance by Respondent.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Eliza Molk, Deputy County Counsel, for Real Party in Interest San Diego
County Health and Human Services Agency.
M.W. (Mother) seeks writ review of orders entered after a jurisdiction
and disposition hearing in the juvenile dependency proceeding involving her
minor children, M.W., Jr., and I.W. In those orders, the juvenile court, inter
alia, terminated reunification services and referred the matter for a selection
and implementation hearing pursuant to Welfare and Institutions Code
section 366.26.1
After their initial removal in 2019, Mother participated in reunification
services that resulted in a short-lived return of the children to Mother’s care
as part of a trial visit following the 12-month review hearing. However, her
relapse into drug use and failure to comply with her case plan necessitated
the removal of the children. The children were removed from Mother’s care
for a second time following the filing of a supplemental petition under section
387.
Mother’s contentions in her writ petition and supplemental petition
appear to be largely premised on her belief that because the children were
residing with her at the time of their second removal, the original dependency
proceeding had concluded and the section 387 petition initiated a new
proceeding. As we explain, this belief is inconsistent with the law and
Mother’s contentions do not support her prayer for extraordinary relief.
Accordingly, we deny the petitions.
1 All further statutory references are to the Welfare and Institutions
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND2
In April 2019, the San Diego County Health and Human Services
Agency (Agency) petitioned the juvenile court under section 300, subdivision
(b), on behalf of then two-year-old M.W., Jr., and 10-month-old I.W. The
Agency alleged that Mother and Mi.W. (Father) (collectively, the parents)
were stopped while driving a stolen vehicle and had marijuana and
methamphetamine paraphernalia in close proximity to their children, who
were passengers in the vehicle. Both parents were arrested based on
outstanding felony arrest warrants.
At a detention hearing in April 2019, the juvenile court found the
Agency made a prima facie showing that the children were persons described
by section 300, subdivision (b). It ordered the children detained in out-of-
home care, directed that reunification services be provided to the parents,
and allowed for supervised visits as permitted during the parents’
incarceration.
Following a guilty plea, Mother was released from custody and began
an inpatient substance abuse treatment program. During that program,
Mother made significant progress on her reunification case plan.
At the first jurisdiction and disposition hearing in July 2019, the court
sustained the allegations under section 300, subdivision (b), removed the
children from parental care, and ordered continued reunification services.
At the six-month review hearing the court ordered overnight visitation
for the children with Mother, who had continued to progress in her case plan.
Before the 12-month review hearing, the Agency relied on the parents’ overall
2 “In accord with the usual rules on appeal, we state the facts in the
manner most favorable to the dependency court’s order.” (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
3
progress to recommend that the children remain dependents of the court,
that they be placed with parents, and that six months of family maintenance
services be provided. The court adopted those recommendations at the
12-month review hearing in August 2020.
The parents, however, began to struggle with case plan compliance.
Mother repeatedly ignored Agency requests to submit to drug testing.
Mother also ignored some calls and text messages from the social worker.
The Agency received and investigated several reports of abuse of the children.
Concern for the children’s safety culminated in an incident in December
2020, when Mother suffered a stillbirth at home. After she arrived at the
hospital, Mother told staff she did not know she was pregnant and admitted
to a treating physician that she had been using methamphetamine almost
daily for several months. Mother asked the physician if the information she
provided was confidential, but the physician informed Mother that she had a
mandatory duty to report the information. Mother then refused additional
testing and quickly left the hospital against medical advice.
After learning of the incident, the Agency attempted to investigate but
the parents twice fled with the children when social workers approached
them. With the support of law enforcement, the social workers were able to
take custody of the children and return them to their foster home.
Thereafter, Mother provided the Agency with drug-test results that appeared
to be falsified. Mother also provided a phone number for her purported
12-step program sponsor, but a social worker discovered the phone number
was disconnected. Mother denied any recent drug use, but also continuously
refused to submit to a drug test.
The Agency then filed supplemental petitions under section 387,
alleging that the placement with the parents had not been effective and
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recommending that the children be placed with their previous foster
caregivers.3 At a detention hearing the next day, the juvenile court found the
Agency had made a prima facie showing that the allegations alleged in the
section 387 petition were true and ordered the children detained in their
foster home.
Thereafter, Mother continued to fail to submit to drug testing. During
an interview, she claimed that drug testing would violate her constitutional
rights. Mother also claimed she had filed a lawsuit against the Agency and
the social workers.
In a subsequent addendum report, the Agency reported that Mother
continued to fail to submit to drug testing and continued to deny using any
controlled substances. The Agency received a report from the medical
examiner that disclosed that the stillborn baby tested positive for
methamphetamine. The examiner informed the Agency that the positive test
result confirmed that Mother had been using methamphetamine recently.
The examiner also opined that although Mother’s drug use may have
contributed to the baby’s death, it was difficult to determine the precise
causal relationship. When confronted with this information, Mother denied
using controlled substances and ultimately ended the phone call with the
social worker.
The Agency opined that the parents had exhausted their 12 months of
reunification services without success. Relying on the toxicology report for
the stillborn baby, the Agency concluded it was clear Mother was using
3 A third petition was filed for the children’s new baby sister, C.W., who
was born during this dependency proceeding and before Mother’s stillbirth.
The proceedings regarding C.W. are not at issue in this writ petition, but are
instead the subject of a separate appeal. (Case No. D078699.) We decline
Mother’s request to consolidate the proceedings.
5
methamphetamine but she continued to deny her use and refused to submit
to testing. Based on her unwillingness to cooperate with the Agency and
aggressive responses to any attempts to facilitate services, the Agency
recommended that the court terminate reunification services and set a
selection and implementation hearing pursuant to section 366.26.
At the jurisdiction and disposition hearing, Mother’s counsel did not
make an opening statement, had no questions for the social worker, and
offered no affirmative evidence. After hearing argument from counsel, the
juvenile court adopted the Agency’s recommendations. The court relied
heavily on Mother’s continued drug use and its effect on her ability to protect
the children.
Both Mother and Father filed a notice of intent to file a writ petition
pursuant to rule 8.452 of the California Rules of Court. However, Father’s
counsel thereafter informed the court that he could find no viable issues for
review and, accordingly, this court dismissed Father’s petition.4
DISCUSSION
Mother filed both a California Rules of Court rule 8.452 extraordinary
writ petition and a supplemental petition, which she titled as a petition for
writ of habeas corpus. Her supplemental petition includes several claims
challenging the court’s orders following the jurisdiction and disposition
hearing. As this court explained in In re Cody R. (2018) 30 Cal.App.5th 381,
the petition for writ of habeas corpus is an “extraordinary remedy of limited
scope” in juvenile dependency proceedings, typically limited to claims to a
right to physical custody of the children on specific grounds and claims of
4 For this reason, the discussion of the factual and procedural
background in this opinion does not significantly address the case
proceedings as they relate to Father.
6
ineffective assistance of counsel. (Id. at pp. 392-394.) Additionally, a writ of
habeas corpus is not available where there is an alternative remedy. (Id. at
p. 395.)
Although Mother includes a claim of ineffective assistance of counsel in
her supplemental petition, her other contentions are not cognizable in a
petition for writ of habeas corpus. However, since all of these contentions
may be reviewed as part of this rule 8.452 writ proceeding, we decline to
dismiss her petition as improper and instead treat the filing as a
supplemental petition under rule 8.452.5
In both the petition and supplemental petition, Mother asserts the
court erred in terminating reunification services and setting a section 366.26
hearing without providing additional services. In her original petition,
Mother contends that the Agency’s “continued interference” after the
12-month review hearing was a violation of her constitutional rights, that the
Agency failed to make reasonable efforts to assist Mother in reuniting with
her children, and that a social worker violated her constitutional rights by
visiting her home, questioning the family, and seeking the assistance of law
enforcement to remove the children from the home. In her supplemental
petition, she again asserts that the juvenile court abused its power by
removing the children after they were returned to her care and that her case
plan was not reasonable.
Although Mother’s petitions are not entirely clear, the contentions
asserted therein seem to be premised on her belief that the juvenile court
5 For similar reasons, we decline the Agency’s contention that we should
dismiss or summarily deny Mother’s petition due to her procedural errors and
ambiguous arguments. Instead, we construe her petition liberally and
consider her arguments to the extent we can ascertain cognizable claims.
(Cal. Rules of Court, rule 8.452 [writ petitions are liberally construed].)
7
either lacked jurisdiction or that the court and the Agency failed to follow the
proper procedures that apply after the filing of an initial petition. Here,
however, the juvenile court’s orders followed the filing of a supplemental
petition. Thus, Mother’s reliance on law and procedures involving initial
petitions is misplaced.
The relevant law vested the juvenile court in this proceeding with
continued jurisdiction following the 12-month review hearing and the record
shows that both the court and the Agency acted appropriately and fulfilled
their continuing duties to the children and Mother. At the 12-month review
hearing, the juvenile court found by clear and convincing evidence that the
conditions justifying the initial assumption of jurisdiction under section 300
still existed. Accordingly, the court ordered that the children be continued as
dependents of the court and that parents receive family maintenance
services. The juvenile court acted within its discretion in continuing the case
for an additional six months at that hearing pursuant to section 366.21,
subdivision (g). Because the children were in the care of parents at that time,
ordering family maintenance services was appropriate. (Carolyn R. v.
Superior Court (1995) 41 Cal.App.4th 159, 165-166 (Carolyn R.).) Most
importantly, while the Agency was providing those family maintenance
services, the dependency proceeding continued and the juvenile court
retained jurisdiction.
Thus, the filing of the section 387 supplemental petition did not initiate
a new proceeding, but was a continuation of the existing proceeding. This
distinction affects the scope of services that may be offered to parents. “When
a juvenile court sustains a supplemental petition pursuant to section 387, the
case does not return to ‘ “square one” ’ with regard to reunification efforts.”
(Carolyn R., supra, 41 Cal.App.4th at p. 166.) “Although section 361.5,
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subdivision (a) speaks in terms of granting reunification services ‘whenever’ a
child is removed from the parent’s home, the cases have uniformly held that
removal of a child from a parent’s home by way of a section 387 petition does
not entitle the parent to a new round of reunification services under section
361.5. Once the reunification ‘clock’ starts ticking upon the initial removal on
a section 300 petition, it continues to run despite subsequent placement with
a parent during the dependency.” (D.T. v. Superior Court (2015) 241
Cal.App.4th 1017, 1035.)
Following an order sustaining a section 387 petition, reunification
services resume only if (1) the parent received less than 12 months of child
welfare services, (2) the parent did not receive reasonable services, or (3) the
case has passed the 12-month mark but there is a substantial probability the
children will be returned within 18 months of the date when the children
were originally removed. (Carolyn R., supra, 41 Cal.App.4th at p. 166.)
None of those situations apply here. When the juvenile court sustained
the section 387 supplemental petition in March 2021, the parents had
received over 12 months of reasonable reunification services and nearly two
years had passed since the children were first removed. Thus, the court had
no obligation to order additional reunification services and Mother fails to
make any showing that the court should have done so. Accordingly, Mother’s
claim that additional services should have been offered following the
children’s removal has no merit.6
6 It is not clear if Mother is also seeking to challenge the reasonableness
of the services provided before the supplemental petition was filed. To the
extent she intends to make such a challenge, Mother forfeits her challenge by
not pursuing an appeal of the juvenile court’s prior appealable orders. (In re
Cicely L. (1994) 28 Cal.App.4th 1697, 1705.) Regardless, her petition does
not demonstrate that the prior services—which were temporarily successful
in reuniting Mother with the children—were unreasonable.
9
Mother raises additional challenges in her supplemental petition. She
contends she was not provided notice of “the detention hearing,” presumably
the one held on December 24, 2020. The record shows, however, that Mother
attended the hearing and was able to participate. If Mother is instead
challenging the sufficiency of the notice of the initial detention hearing, she
was also present at that hearing, which was continued twice to ensure her
presence despite her incarceration. Given Mother’s appearance at both
hearings, we may reasonably presume that she was given actual notice or,
alternatively, was not prejudiced by the purportedly insufficient notice. (See,
e.g., In re A.J. (2019) 44 Cal.App.5th 652, 667 [requirement that an
incarcerated parent either be present or waive his or her appearance is
sufficient to ensure parent actually received notice].)
Mother also contends that the Agency failed to establish a sufficient
basis for removing the children from her care and placing them in foster care.
Our review of the record establishes that the trial court’s findings are
supported by substantial evidence.
“When a section 387 petition seeks to remove a minor from parental
custody, the court applies the procedures and protections of section 361.
[Citation.] Before a minor can be removed from the parent’s custody, the
court must find, by clear and convincing evidence, ‘[t]here is or would be a
substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be
protected without removing the minor from the minor’s parent’s . . . physical
custody.’ [Citations.] [¶] A removal order is proper if it is based on proof of
(1) parental inability to provide proper care for the minor[;] and (2) potential
detriment to the minor if he or she remains with the parent. [Citation.] The
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parent need not be dangerous and the minor need not have been harmed
before removal is appropriate. The focus of the statute is on averting harm to
the child.” (In re T.W. (2013) 214 Cal.App.4th 1154, 1163.)
We review the juvenile court’s factual findings to determine whether
they are supported by substantial evidence, adjusting our analysis to account
for the clear and convincing standard of proof in the juvenile court. (In re
T.W., supra, 214 Cal.App.4th at pp. 1161-1162; Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1005-1006.)
Here, the evidence clearly supports the juvenile court’s conclusion that
Mother was unable to properly care for her children and there was a
substantial risk of harm were the children left in her care. Despite Mother’s
denials of drug abuse, the presence of methamphetamine in her stillborn
baby and Mother’s statements to a treating physician that she was regularly
using methamphetamine establish that she was often under the influence
while parenting the children. She repeatedly refused to submit to drug
testing. On another occasion, she apparently falsified drug-test results in an
attempt to mislead the Agency. Mother’s drug abuse was not a new concern,
but rather a continuation of her longstanding struggles with controlled
substances that repeatedly prevented her from safely parenting the children.
Moreover, Mother’s aggressive behavior, attempts to mislead the
Agency, refusal to accept the assistance of social workers, and denials of her
drug abuse supported a conclusion that the children could not be reasonably
protected while remaining in her care. Even assuming the children had not
yet been harmed, as Mother contends, the evidence established a clear
potential for harm to the children that necessitated their removal from her
care.
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When the evidence is considered as a whole, Mother’s repeated lapses
into drug use, combined with her denials of that use and refusal to address
the problem, provide a sufficient evidentiary basis to support the juvenile
court’s finding that Mother’s conduct placed the children at substantial risk
of serious physical harm. (In re K.B. (2021) 59 Cal.App.5th 593, 600-602.)
Accordingly, we see no error in the juvenile court’s findings.
Finally, Mother contends that her counsel was ineffective. “To assert a
claim of ineffective assistance, a petitioner must allege that the performance
of trial or appellate counsel fell below an objective standard of reasonableness
under prevailing professional norms and was therefore deficient. He or she
must also claim there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” (In re
Cody R., supra, 30 Cal.App.5th at p. 394.) At most, Mother contends that her
counsel’s performance fell below the standard “by failing to raise objections to
the sufficiency of [the] evidence, strategize or make any defensive argument,
cross-examine[] social workers, provide the court with documentation
favorable to his client, call any witnesses, and fail[ing] to inform client at
review hearing of the right to file an appeal.”
Beyond these general assertions, Mother provides no additional
evidence to support her claim that her counsel was ineffective. In order to
prevail on a claim of ineffective assistance of counsel on the basis that the
counsel failed to investigate, call witnesses, or make certain arguments, the
party raising the claim “must establish the nature and relevance of the
evidence that counsel failed to present or discover.” (People v. Williams
(1988) 44 Cal.3d 883, 937.) Mother makes no such showing. Her conclusory
assertions that counsel should have been a better advocate by making
different arguments or providing better advice to her are insufficient to
12
establish a claim for ineffective assistance of counsel. (See, e.g., In re Reno
(2012) 55 Cal.4th 428, 493 [“conclusory allegations without specific factual
allegations do not warrant relief.”].) Moreover, by failing to establish the
relevance of any omitted evidence or argument, Mother fails to establish any
prejudice from her counsel’s alleged deficiencies.7 Mother makes no showing
that a different result was likely absent any alleged deficient performance by
her counsel.
Considered altogether, the arguments in Mother’s petition and
supplemental petition do not demonstrate error by the juvenile court.
Understandably, Mother disputes the outcome of the latest hearing and does
not agree with the removal of her children. However, under our deferential
standard of review, her petitions do not establish any error by the juvenile
court that warrant extraordinary relief. Accordingly, we deny both petitions.
7 Mother also includes a passing reference to her counsel’s failure to
advise her regarding her appellate rights, but fails to clarify which
appealable order she is referencing and does not provide any evidence to
support her assertion. We presume counsel’s performance was effective and a
party bears the burden of affirmatively establishing deficient performance,
usually based on evidence beyond the record of the trial. (See, e.g., In re
Arturo A. (1992) 8 Cal.App.4th 229, 243; In re Cody R., supra, 30 Cal.App.5th
at p. 394; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147 [applying
strong presumption that counsel’s conduct falls within the wide range of
professional assistance].) Mother fails to make such a showing in regard to
her claim that her counsel’s advice regarding her appellate rights was
insufficient. Similarly, Mother’s reference to counsel’s failure to obtain a
certificate of probable cause, which typically is a procedure invoked in
criminal proceedings following a guilty plea, appears to have no bearing on
her appellate rights in this proceeding.
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DISPOSITION
The petitions are denied.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
DO, J.
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