Monterey Cnty. Dep't of Soc. & Emp't Servs. v. T.A. (In re J.H.)

In re J.H., a Person Coming Under the Juvenile Court Law.

MONTEREY COUNTY DEPARTMENT OF

SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. T.A., Defendant and Appellant.

H043498

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

October 21, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Monterey County Super. Ct. No. J48237)

T.A., the father of J.H., appeals from an order of the juvenile court terminating his parental rights to his daughter, J.H., and selecting adoption as the permanent plan for the child. (Welf. & Inst. Code, § 366.26.)¹ On appeal, father argues that at an earlier hearing the court abused its discretion and denied him due process when it "acquiesced to the suspension of visits" between him and J.H. and then terminated visitation without a finding or evidence that continued visitation would be detrimental to her. Father further argues that the court failed to notify him of the opportunity to seek writ review when reunification services were terminated and the case calendared for a hearing undersection 366.26. Finally, father asserts ineffective assistance of counsel because his trial attorney "failed to challenge the deprivation of visitation in court or by appeal." As none of father's appellate contentions concerning earlier final appealable orders is cognizable, we will affirm the order.

Background

On December 10, 2014, the Monterey County Department of Social and Employment Services (Department) filed a juvenile dependency petition on behalf of J.H., then seven years old, under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The "Jurisdiction/Disposition Report" indicated that the whereabouts of C.L., J.H.'s mother, were unknown. Father was the presumed father of J.H. He was homeless. Father had a history of substance abuse and criminal behavior. His extensive criminal history included "multiple convictions for possession of marijuana and other controlled substances, multiple DUIs, and multiple theft or burglary attempts." Just four days earlier he had been arrested on multiple charges.

According to the jurisdiction/disposition report, there had been five referrals since 2010, and the referrals indicated that mother had "a substance abuse problem that persistently caused her to struggle to adequately meet the needs of the children." In March 2010, mother had asked that J.H. and an older daughter (from a different father) be removed from her custody, and she was referred to Pathways to Safety for services. In 2012 the Department received another referral regarding mother, who was homeless. The report indicated that mother left J.H. and her older daughter with their respective fathers.

On December 8, 2014, the Department received another referral. Father had been arrested and J.H. was living with a non-related female family friend in a home, which was described as filthy. There were child molestation charges pending against a juvenile member of the household, and the responding police officers suspected "possible drug use" by the friend. Before father's arrest J.H. had been living with him, but he washomeless. They lived in tents in the woods. J.H. was placed in protective custody on December 9, 2014.

The jurisdiction/disposition report indicated that father was released from jail on bail on December 8, 2014. At a team decision-making meeting two days later, father submitted to a drug test, which produced a positive result for marijuana and methamphetamines. Father failed to appear for the detention hearing on December 11, 2014.

The case plan, which was attached to the jurisdiction/disposition report, provided for a minimum of one supervised visit per week. A scheduled visit would be cancelled if the parent arrived more than 15 minutes after the visit was scheduled to begin. The frequency and length of the proposed visitation corresponded to "the parent's progress, or lack of progress and the needs of the child."

At the jurisdictional/disposition hearing on January 20, 2015, father submitted the matter on the Department's January 14 report. The juvenile court declared J.H. a dependent child of the court, removed her from father's physical custody, ordered her to remain under the Department's care, custody, and control for suitable placement, and ordered family reunification services for father. Services were not ordered for mother, whose whereabouts were unknown. The court approved the case plan and ordered all parties to comply with it. The court further determined that visitation with the child by father would not be detrimental and directed the Department to arrange the time, place, and supervision of the visitation.

The Department filed its status review report on July 6, 2015 in preparation for the six-month review hearing (§ 366.21, subd. (e)). The Department recommended continuing family reunification services for father. It again noted that father had "a history of substance abuse and criminal behavior that inhibits his ability to adequately care for the child." His criminal history included "multiple convictions for possession of marijuana and other controlled substances, multiple DUIs, and multiple theft or burglaryattempts." He had been arrested on December 6, 2014 for a number of crimes. Although no new criminal charges had been filed during the review period, there was "an outstanding bench warrant for his failure to appear for misdemeanor arraignment."

According to the July 2015 report, father had stated that he was currently homeless and that he had been working in construction seven days a week since April 2015. The facilitator of a parent education group, which had been set to start on June 30, 2015, had experienced difficulties reaching father. Father had been unwilling or unavailable to participate in parenting classes. With regard to substance abuse, father had not completed an alcohol and drug assessment as required by the case plan, he had not complied with all drug testing requests, he was not attending "NA" meetings, and he did not have a 12-step sponsor. Father had "not had monthly contact with the Department to discuss his case plan" and had been unwilling or unavailable to meet with the social worker, despite her repeated requests and her willingness to meet him near his worksite. During the limited contact they did have, father had behaved aggressively, yelling and cursing.

The social worker summarized the Department's position that father had been unwilling to participate in any of his case plan activities and had not made sufficient progress toward reunification. He had maintained only "sporadic contact with the Department," and he "continuously [sic] use[d] his employment as an excuse as to why he [was] not available to participate in services."

As to visitation, the social worker stated that in May 2015, father's weekly supervised visits had been suspended because father had been inconsistently attending them. Since May he had failed to show up for any visits, except for one in which he arrived over 20 minutes late, which resulted in its cancellation. Although the visits had been scheduled at an agreed-upon time, father still blamed his work schedule for missing visits. J.H. had said, "I miss my dad and love him but he is not showing up to visit me. I want to be back with my dad or be adopted if I can't." The Department nonethelessrecommended that the juvenile court allow visitation by father "in accordance with the case plan," with the frequency, time, place, and supervision to be arranged by the Department.

At the uncontested hearing on July 21, 2015, the juvenile court ordered father to "drug test forthwith" and to show proof of employment. He tested positive for methamphetamine and opiates. The court continued the matter to September 15, 2015.

In an addendum report dated September 9, 2015, the Department recommended that reunification services for father be terminated and that the matter be set for a selection and implementation hearing. According to the report, father had been "unwilling to participate in any of his case plan activities" and he had "not made any progress toward unification." The report specifically advised the court that father had "made no contact with the Department since the last court hearing on July 21, 2015." It also stated that father had "yet to address his substance abuse issues." He had refused to comply with drug testing throughout the past six months. When father was ordered to drug test at the six-month review hearing, he tested positive for amphetamines and opiates.

As to visitation, the Department noted that father had had no contact with J.H. for the past six months. When the social worker attempted to address the subject, father became "defensive and [blamed] others for not making it to visitation. For example, he has stated that he was not informed about the visitation, he arrived to visitation but nobody was present, or he uses his employment as an excuse for not making it to visitation. However, the father has not shown any proof of employment. Since the last court hearing on July 21, 2015, [he] has made no request to visit with [J.H.]"

At the ensuing hearing on September 15, 2015, the juvenile court terminated reunification services to father. Father's counsel, but not father, appeared at the hearing. Father's counsel reported that she had not had any contact with father. The court observed that father had "had no contact with virtually anyone since the last hearing, and[he] ha[d] not had any contact with J.H. for the last six months." The court ordered that no visitation take place with either parent until the Department determined that it was appropriate.² It...