Orange Cnty. Soc. Servs. Agency v. Anamarie P. (In re R.P.)

In re R.P., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ANAMARIE P., Defendant and Appellant.

G059151

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

October 28, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct. No. 19DP0937)

OPINION

Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.

Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * * R.P. (the minor) was born in early August 2019, and was taken away from A.P. (mother) at birth after they both tested positive for methamphetamine. Mother then failed to engage in the services offered by Orange County Social Services Agency (SSA) and missed the majority of her scheduled visits with the minor. At the disposition hearing on October 23, 2019, the juvenile court denied reunification services, granted mother seven hours of weekly visitation, and set a hearing under Welfare and Institutions Code section 366.26.¹ On the day of the disposition hearing, mother was arrested and taken into custody for the next six months. At the section 366.26 hearing in June 2020, which occurred after mother had been released from custody, the court terminated mother's parental rights and found the minor to be adoptable.

On appeal, mother contends her due process rights were violated because SSA failed to ensure that she received visitation after she was taken into custody and because the juvenile court failed to ensure that its visitation order was followed. We disagree. Mother never made any complaint to the court regarding lack of visitation after she was taken into custody, nor did she request any specific visitation orders. It was her burden to do so, and the court cannot be faulted for not doing something that was never requested. Further, by the end of February 2020, the minor suffered from respiratory issues that prevented visitation from occurring. For these reasons, we affirm the court's order.

IFACTS

A. Petition and Detention

Mother gave birth to the minor in early August 2019, and both mother and the minor tested positive for amphetamines and methamphetamine. The next day, SSA interviewed mother. It learned she had failed to obtain prenatal care after learning she was pregnant even though hospital staff had advised her to do so. She further admitted to using methamphetamine two months prior to delivery, when she knew she was pregnant. She also self-reported a charge for drug sales in 2016 and active informal probation that she was scheduled to complete in 2020. She also stated that there had been an open dependency case as to her other children as a result of her drug use.

Additional investigation into mother's past revealed she had been arrested several times for drug-related offenses between 2011 and 2018. It also found that mother has children with two other men, Alex V. and Roberto S. (mother and Roberto S. are legally married but have been separated for several years).² The other children were removed from mother's care in March 2012 after mother gave birth to the minor's half-sister, and both mother and daughter subsequently tested positive for methamphetamine. Mother reunified with her children and dependent child proceedings were terminated in April 2014. At the time of the minor's birth, all of mother's children (including the child of mother and Alex V.) were in the custody of Roberto S., who had obtained a domestic violence restraining order in 2017 against mother that protected him and all of mother's children. The restraining order was set to expire on September 4, 2020. SSA also found prior child abuse investigations relating to mother and her other children. Some were unfounded while others were substantiated. But no dependency proceedings were initiated based on those investigations.

SSA applied for a protective custody warrant for the minor the day after his birth, and it was granted that same day. On August 6, 2019, SSA filed a juvenile dependency petition based on the above findings. A detention hearing was held on August 7, 2019. Mother was present at the hearing and represented by counsel. The juvenile court found a prima facie case had been established and that the minor needed to be removed from his parents' physical custody for his own well-being. The minor was placed in a foster home, and the court authorized seven hours of supervised visitation for mother so long as she was "not under the influence of any intoxicants."

B. Jurisdiction and Disposition Hearings

Various services were offered to mother, including, among other things, drug testing, parenting classes, and counseling. Mother was also provided multiple bus passes to assist with transportation needs. Mother failed to take advantage of the services. With regard to drug testing, between August 16 to August 28, 2019, mother missed three random drug tests and her call-in compliance was 26 percent. From August 30 to September 19, 2019, mother's call-in compliance was 0 percent and she missed six random drug tests. From September 23 to October 4, 2019, mother missed five random drug tests and had a 0 percent call-in compliance.

Mother also delayed in starting her parenting classes. She eventually made it to her initial parenting class on September 25, 2019, but only stayed for one hour of the two-hour class.³ Mother also missed her initial intake appointments for counseling services and failed to provide proof of participation in any substance abuse programs or attendance at any self-help meetings.

Similarly, mother was sporadic with visitation, which was divided into two 3-and-a-half-hour visits per week. Mother had a full three-and-a-half-hour visit with the minor on August 13, 2019. But she did not show up for a scheduled visit the next day, claiming she had transportation issues. On August 19 and 21, mother cut her visits with the minor short, leaving after only one hour. She then missed a scheduled visit on August 23 because she was not feeling well. Mother attended visits with the minor on September 3 and September 11, but missed a scheduled visit on September 5.

On September 17, mother arrived for her visit 10 minutes late and then left 30 minutes early. She appeared jittery and nervous during the visit and fell asleep while carrying the minor. She visited again on September 18, but left after one hour. Mother missed another confirmed visit on September 23. She then missed visits on October 1, 3, 9, 10, and 15, because she failed to confirm the visits ahead of time.

On October 4 and 7, case social worker Maricruz Jimenez attempted to call mother to schedule a face-to-face meeting. Both times mother's phone went straight to voicemail, and the inbox was full so no message could be left. On October 8 and 9, Jimenez attempted to contact mother regarding visitation, but her phone again went straight to voicemail and the mailbox was still full. On October 9, Jimenez sent a text message reminding mother to confirm her visit. Mother never confirmed and the visit was cancelled. Finally, on October 15, 2019, Jimenez attempted to call mother regarding visitation, but her phone was off. So, Jimenez sent mother a text message stating that visitation would be placed on hold until mother called to arrange a visitation schedule. Jimenez then called the minor's maternal grandmother (maternal grandmother), asking her to tell mother to contact Jimenez to arrange visits.

Mother was not present at the jurisdiction hearing on September 25, 2019, and her counsel's request for a continuance was denied. The juvenile court found the petition to be true and set a disposition hearing for October 23, 2019. Mother also failed to appear at the October 23 disposition hearing, and the court again denied her counsel's request for a continuance. The court declared the minor to be a dependent of the court. It denied mother reunification services but approved seven hours of supervised visits per week, with "SSA authorized to liberalize visits as to frequency, duration and need for monitoring . . . ." A section 366.26 hearing was set for February 20, 2020.

C. Mother's Arrest and Release

Mother was arrested on October 23, the date of the disposition hearing. She received notice of the section 366.26 hearing while in custody. A new social worker, Thuann Sexton-Hogan was assigned to the minor's case on November 4, 2019.⁴ Hogan did not learn that mother had been arrested and was in custody until November 21, 2019, when she was informed by maternal grandmother. Hogan also never informed mother that she had been assigned to the case.

SSA's report filed prior to the hearing on February 20, 2020, stated that the minor had not had contact with mother since dependency. It also stated that the minor had been placed with caretakers who desired adoption, and that there were no impediments to adoption. The report recommended that the minor remain a dependent of the juvenile court, that parental rights be terminated, and that the minor be referred for adoptive placement.

At the February 20, 2020 hearing, the juvenile court learned that mother was in custody and had not been transported to the hearing. It continued the hearing to the next day. On February 21, the court again continued the hearing to March 12, 2020, and ordered that one in-custody visit with mother occur before that hearing, subject to approval by the minor's pediatrician. The visit never occurred. The minor's pediatrician provided a note...