Jennifer L. v. Superior Court CA5 ( 2015 )


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  • Filed 7/13/15 Jennifer L. 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    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 This opinion has not been certified for publication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
    JENNIFER L.,
    F071454
    Petitioner,
    (Super. Ct. No. 14JD0001)
    v.
    THE SUPERIOR COURT OF KINGS                                                              OPINION
    COUNTY,
    Respondent;
    KINGS COUNTY HUMAN SERVICES
    AGENCY,
    Real Party in Interest.
    THE COURT*
    ORIGINAL PROCEEDING; petition for extraordinary writ review. Jennifer Lee
    Giuliani, Judge.
    Jennifer L., in pro. per., for Petitioner.
    No appearance for Respondent.
    Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel,
    for Real Party in Interest.
    -ooOoo-
    *        Before Levy, Acting P.J., Gomes, J. and Peña, J.
    Jennifer L. in propria persona seeks extraordinary writ relief from the juvenile
    court’s orders issued at a contested 12-month review hearing (Welf. & Inst. Code,
    § 366.21, subd. (f))1 terminating her reunification services and setting a section 366.26
    hearing as to her children, 10-year-old Ashlee G., five-year-old Gauge V. and three-year-
    old A.V.2 Jennifer contends her attorney was ineffective, the juvenile court allowed
    testimony into evidence despite valid objections, and the juvenile court conducted the
    hearing without essential people present. We deny the petition.
    PROCEDURAL AND FACTUAL SUMMARY
    In January 2014, Jennifer was arrested following a probation search in which
    officers found a large bindle of methamphetamine, glass pipes and two sharp knives in
    her bedroom to which the children, then eight-year-old Ashlee, three-year-old Gauge and
    23-month-old A.V., had unrestricted access. Jennifer admitted having an extensive
    history of drug use, but claimed the methamphetamine and pipes belonged to Julio who
    was incarcerated on drug-related charges. Julio is the father of Gauge and A.V. Juan is
    the alleged father of Ashlee and resides in Mexico.
    The Kings County Human Services Agency (agency) took the children into
    protective custody and placed them in foster care.
    The juvenile court exercised its dependency jurisdiction over the children after
    sustaining allegations that Jennifer’s substance abuse placed the children at a substantial
    risk of serious physical harm or illness. (§ 300, subd. (b).) The juvenile court ordered a
    plan of reunification for Jennifer but denied Julio and Juan reunification services.
    Jennifer’s services plan required her to complete a parenting program, participate in
    1     All further statutory references are to the Welfare and Institutions Code unless
    otherwise indicated.
    2      Because this child’s name is unique, we refer to her by her first and last initials to
    protect her privacy. (Cal. Rules of Court, rule 8.401(a)(2).)
    2.
    outpatient substance abuse treatment, submit to random drug testing and attend weekly
    Alcoholics/Narcotics Anonymous (AA/NA) meetings.
    Over the ensuing six months, Jennifer completed a parenting class and complied
    with many of her case plan requirements, but made only moderate progress because she
    continued to test positive for drugs. In mid-January 2014, she submitted a hair follicle
    for drug testing and it yielded a positive result for methamphetamine. When questioned
    about the positive result, Jennifer was adamant that she had not used drugs since
    November 2013. In May 2014, Jennifer tested positive for methamphetamine by hair
    follicle analysis at an even higher level. She also tested positive for marijuana. She
    denied using any drugs since January 2014 but said she was around people who were
    smoking marijuana in April. In August, she tested negative for drugs by hair follicle
    analysis. Jennifer was relieved by the results, stating that she relapsed and smoked
    marijuana in July with friends. She said she only “took two puffs” and had not used any
    drugs since.
    In its report for the six-month review hearing, the agency informed the juvenile
    court that Jennifer enrolled in a dual diagnosis treatment program in February 2014 and
    was participating and engaged in class. Despite Jennifer’s moderate progress, the agency
    believed there was a substantial probability the children could be returned to her after an
    additional period of reunification services and recommended the juvenile court continue
    services for her.
    In September 2014, the juvenile court conducted the six-month review hearing,
    continued Jennifer’s reunification services, and set the 12-month review hearing for
    February 2015.
    Meanwhile, Jennifer tested positive for methamphetamine and marijuana by hair
    follicle testing in October and December 2014. When confronted with the results, she
    cried and stated “I only take a few hits due to being so stressed out.” In addition, she was
    not regularly participating in her dual diagnosis program. Consequently, the agency
    3.
    recommended the juvenile court terminate her reunification services and set a section
    366.26 hearing.
    On April 14, 2015, the juvenile court convened a contested 12-month review
    hearing. County counsel called Jennifer as a witness. She testified that the social worker
    recently asked her to drug test and she refused because she wanted to be tested at a
    different testing facility. She did so and her attorney had the results. She did not provide
    them to her social worker because her social worker indicated that she was lying so she
    dropped it. She said the social worker misunderstood what she meant when she said she
    “took a few hits.” She meant she took “verbal hits” as in being under attack not as in
    using methamphetamine. She explained she missed her dual diagnosis classes because
    she was ill but did not provide any medical documentation to substantiate her illness.
    When questioned by her attorney, Jennifer testified she last used
    methamphetamine in July 2014. She said the positive drug test results from October and
    December 2014 were inaccurate. Her attorney showed her an unmarked document to
    refresh her memory as to a subsequent hair follicle drug test. Jennifer responded that the
    document reflected the results of a hair follicle drug test she took on March 16, 2015 at
    Quest Diagnostics in Coalinga. She started to read from the document, stating the results
    were negative for each category of drugs. County counsel objected to her reading the
    document and the juvenile court struck her answer. The juvenile court continued the
    hearing until April 16, 2015.
    On April 15, 2015, the agency filed an addendum report detailing social worker
    Kristi Herrera’s unsuccessful efforts to validate Jennifer’s March 16, 2015 drug test
    results. Herrera contacted the Coalinga Regional Medical Center and spoke to a lab
    technician who stated that the laboratory did not conduct hair follicle testing. In addition,
    Jennifer was last seen at the medical center in April 2014 for an emergency room visit.
    Herrera also contacted Quest Diagnostics and provided the requisition number, donor
    identification, donor name, collection date and time. The staff member was unable to
    4.
    find a test with that information but asked for the accession number. She then asked
    whether the collection date looked altered because she was able to locate a test completed
    for Job Care in November 2014 with that accession number and donor name. She said
    she was unable to provide any further information. Herrera was able to confirm with Job
    Care that Jennifer paid to be tested there in November 2014 but could not provide any
    further detail without Jennifer’s consent.
    The agency also provided the juvenile court an update on Jennifer’s attendance in
    her dual diagnosis treatment program. She attended phase II groups on nine occasions
    from early January 2015 to early April 2015. She missed three group sessions and four
    individual therapy sessions during that same time frame.
    On April 16, 2015, Jennifer resumed her testimony and stated that the March 2015
    negative test results were correct. She explained that she did not give the test results to
    the social worker because she was moving and they were packed.
    Following argument, the juvenile court stated that it did not find Jennifer’s
    testimony credible. It found that she made minimal progress, terminated her reunification
    services, and set a section 366.26 hearing.
    This petition ensued.
    DISCUSSION
    Jennifer contends the juvenile court’s orders terminating her reunification services
    and setting a section 366.26 hearing are erroneous on the following grounds:
    “[i]neffective [counsel], not all parties present, and valid testimony or evidence [was]
    mishandled.” Jennifer included with her petition a form authorizing the release of her
    health information dated in January 2015, select pages from the agency’s September
    2014 status review report, attendance sheets with stickers and a personal 2014 calendar.
    Jennifer did not support each point of error with argument, citation to legal authority and
    citation to the record. (Cal. Rules of Court, rule 8.452(a)(1).) She seeks an order from
    5.
    this court directing the juvenile court to vacate the section 366.26 hearing and return the
    children to her custody or continue reunification services.
    As a preliminary matter, we can only review the record that was before the
    juvenile court. (In re Zeth S. (2003) 
    31 Cal.4th 396
    , 405.) Of the documents that
    Jennifer included with her petition, only the September 2014 status review report is part
    of the juvenile court record. Consequently, we cannot review Jennifer’s authorization to
    release health information, class attendance sheets and calendar. We turn to Jennifer’s
    points of error.
    Ineffective Assistance of Counsel
    Jennifer contends her trial attorney was ineffective for not presenting evidence or
    testimony on her behalf. She fails, however, to meet her burden on appeal.
    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 that her attorney was ineffective, Jennifer would
    have to identify the specific acts that rendered her attorney ineffective and show that but
    for those acts the juvenile court would have ruled in her favor.
    Jennifer does not specify what evidence she believes her attorney should have
    elicited or produced. It appears however that by her inclusion of her class attendance, she
    is attempting to show that her attorney was ineffective for not producing evidence to
    rebut the agency’s claim that she was not regularly attending her dual diagnosis classes.
    However, as we stated, that evidence was never admitted into evidence and therefore is
    not subject to our review. Further, even if probative evidence on that issue exists,
    Jennifer would be hard-pressed to show that she was prejudiced by her attorney’s failure
    to produce it. That is because Jennifer’s irregular attendance was only one reason the
    6.
    juvenile court ruled as it did. The juvenile court also believed that Jennifer was still
    using drugs and that she falsified a test result to make it appear otherwise.
    We conclude Jennifer failed to meet her burden of demonstrating her attorney was
    ineffective.
    Essential Parties Not Present
    Jennifer contends the juvenile court erred in conducting the contested 12-month
    review hearing without Julio and social worker Stephanie Wlaschin in attendance.
    According to the record, Ms. Wlaschin did appear for the April 14, 2015 hearing and her
    supervisor, Kristi Herrera, appeared for the continued hearing on April 16. Further, Julio
    was incarcerated and not transported to the hearing. His attorney advised the court that
    Julio had been denied reunification services and in essence did not have any issues to
    litigate.
    Jennifer does not explain the nature of the juvenile court’s error. Where an
    appellant complains of error without pertinent argument, we may consider the issue
    abandoned. (Berger v. Godden (1985) 
    163 Cal.App.3d 1113
    , 1119-1120.) We elect to
    do so in this case and comment no further.
    Testimony Admitted Into Evidence
    Jennifer contends the juvenile court erred in admitting testimony into evidence
    over valid objections. However, she does not specify which evidence should have been
    excluded. In the absence of pertinent argument, we deem the issue abandoned. (Berger
    v. Godden, supra, 163 Cal.App.3d at p. 1119.)
    DISPOSITION
    The petition for extraordinary writ is denied. This opinion is final forthwith as to
    this court.
    7.
    

Document Info

Docket Number: F071454

Filed Date: 7/13/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021