Santa Barbara County Child Welfare Services v. Jasmin R.

Filed 10/1/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re ERNESTO R., A Person Coming 2d Juv. No. B255116 Under the Juvenile Court Law. (Super. Ct. No. 1435791) (Santa Barbara County) CHILD PROTECTIVE SERVICES, Petitioner and Respondent, v. JASMIN R., Respondent and Appellant.

An attorney in a dependency case has no obligation to file a futile Welfare and Institutions Code section 388 petition to modify an existing order.1 The decision not to do so is not a "failure" within the meaning of ineffective assistance of counsel jurisprudence. Use of the word "failure" carries the connotation of deficiency or negligence i.e., not doing something that should have been done. Jasmin R. appeals from an order terminating her parental rights to her son, one year old Ernesto R., after reunification services were bypassed due to appellant's long term substance abuse. Appellant claims that she was denied effective assistance of counsel because her trial attorney "failed" to file a section 388 petition to modify an order bypassing reunification services. Given appellant's dismal history of parenting two older children who were removed from her custody and care, the filing of such a petition "would have been a classic exercise in futility." (See People v. Eckstrom (1974) 43 Cal.App.3d 946, 1003.) We affirm.

1 All statutory references are to the Welfare & Institutions Code. 1

Facts & Procedural History Child Protective Services (CPS) filed a dependency petition for failure to protect Ernesto. The petition documented appellant's chronic substance abuse and alleged that she had enrolled in four court-ordered drug treatment programs but failed to complete a single program. Appellant was on probation and continued to use drugs while pregnant with Ernesto. Following a June 2013 arrest, appellant was offered the choice of "maxing" out her sentence with jail time or enrolling in an inpatient drug treatment program. She opted for the drug treatment program but suffered a drug relapse. Ernesto was born in August 2013 and tested positive for marijuana. Appellant was not a stranger in dependency court. She failed to reunify with her two older children. Her child welfare history included a 2009 domestic violence incident in which appellant took an overdose of Soma. Appellant tested positive for amphetamine and was placed on a section 5150 psychiatric hold. Appellant was offered reunification services from March 2009 to March 2011 but was non-compliant. On August 30, 2011, the juvenile court terminated parental rights to appellant's daughter, Lluvia. On October 18, 2011, appellant lost custody of Ernesto's older brother, Zayley, after Zayley tested positive for amphetamine and marijuana at birth. The trial court bypassed reunification services and terminated parental rights as to Zayley in April 2012. After Ernesto was detained, CPS recommended that services be bypassed due to appellant's chronic substance abuse. Appellant claimed that she was participating in a drug treatment program, attending group meetings, and testing clean for drugs. The trial court concluded that it was too little and too late. It found that appellant had not made reasonable efforts to address the substance abuse problem that led to the removal of Ernesto and that reunification services would not be in his best interests. The court denied reunification services (§ 361.5, subds. (b)(10), (b)(11) & (b)(13)) and set the matter for a permanent placement hearing. At the contested section 366.26 hearing, CPS reported that Ernesto was adoptable and bonded to his foster parents. Appellant was living at a shelter and receiving an array of services. Although she regularly visited Ernesto, CPS remained