In re M.R.
| Decision Date | 12 July 2021 |
| Docket Number | 2d Juv. B308711 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re M.R. et al., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. S.H. et al., Defendants and Appellants. |
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. Nos 20JV00147, 20JV00148 Arthur A. Garcia, Judge
Nancy R. Brucker, under appointment by the Court of Appeal, for Defendant and Appellant S.H. (Mother).
Deborah Dentler, under appointment by the Court of Appeal for Defendant and Appellant S.R. (Father).
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.
S.H. (Mother) and S.R. (Father) appeal from the juvenile court's order terminating their parental rights as to their son M.R. and daughter E.R. (the children). (Welf. & Inst. Code, § 366.26.)[1] They contend: (1) their failure to file a petition for extraordinary writ does not preclude this appeal, and (2) their counsel rendered ineffective assistance. Father further contends his parental rights were terminated without due process of law. We affirm as to Mother and reverse as to Father.
Facts regarding Mother
Mother began using methamphetamine at the age of 12. In approximately 2018, she began using heroin daily. She participated in several substance abuse programs but admitted that she continued to use methamphetamine on weekends while enrolled in programs. Since age 12, her longest period of sobriety was 13 months (January 2015 to February 2016).
In 2013, Mother tested positive for methamphetamine during two prenatal visits and during delivery of M.R. The department opened a Voluntary Family Maintenance (VFM) case. During the VFM, mother was referred to a residential program. She was on probation for driving under the influence and reported she was enrolled for treatment at Central Coast Headway and at Zona Seca. She later reported she was no longer willing to enter residential treatment.
Later that year, when Mother was arrested for firearm and narcotics violations, the VFM was terminated because both parents were incarcerated and neither was available for services. The criminal court placed Mother on drug diversion. She did not successfully complete the program and criminal proceedings were reinstated.
Another VFM was opened in 2014 because, while drunk, Mother dropped four-month-old E.R. several times. She was convicted of willful child cruelty. Mother again participated in a substance abuse program.
In December 2019, as a condition of pretrial release for first degree residential burglary, Mother agreed to attend Alcoholics Anonymous twice a week or enroll in Coast Valley treatment. The criminal court later ordered her to complete the Coast Valley program. Mother felt the program “was too much for her then” and instead admitted herself to a detox program.
In January 2020, the court ordered her to test at the probation department that day or the next day. Nine days later, the probation department advised her that she was in violation of her pretrial supervision and was required to come to court in five days. She failed to appear and the court issued a bench warrant. In March 2020, the criminal court noted that she was in detox, and ordered her to remain in the program. She completed the detox program March 10, but twelve days later she overdosed on heroin while the children were in the room. She was taken to the emergency room, leaving the children with an unidentified male. The children were placed with their maternal grandparents.
The detention report prepared for the March 27 hearing states, “The mother was referred to call ACCESS and understands she would best benefit from a residential program.” Mother told her probation officer that she completed screening through the ACCESS line, which referred her to Recovery Way. But ACCESS and Recovery Way denied that a referral had been made. The probation officer stated that “mother was not in compliance with the terms of her probation and she was expected to be in drug treatment.” Mother asked the probation officer if she could attend Coast Valley outpatient treatment instead of residential treatment. The probation officer said she was required to enroll in residential treatment as recommended by ACCESS.
In April, a manager at Recovery Way stated that she had not received a referral from ACCESS for Mother, but Mother had called and said she had been referred for detox. Recovery Way did not have detox beds available and told Mother she would not be appropriate for the residential program until she completed opiate withdrawal at detox. Mother enrolled in outpatient services at Coast Valley in May, and was referred to a doctor for medication assisted treatment.
Mother had an appointment in May to enter residential treatment at Recovery Way but missed her intake appointment. She enrolled thirteen days later. At intake, she tested positive for heroin and methamphetamine, and admitted using those drugs the previous two days.
Between March and June, Mother visited the children five times on the telephone and five times via video, and missed four scheduled visits. She visited in-person five times in August and three times in September. The Court Appointed Special Advocate described Mother's visitation as “very sporadic.”
Facts regarding Father
In 2014, Father was charged with dissuading a witness by force or threat of force (Pen. Code, § 136.1, subd. (c)(1)) and other crimes. He was sentenced to 16 years in state prison. At the time sentence was imposed, M.R. was two years old and E.R. was 15 months old.
Mother told the department she was “in [a] relationship with the father when he was sentenced to prison; however, their relationship ended shortly thereafter and she has not spoken to him in nearly six years.” The jurisdiction/disposition report stated that the children “do not have an established relationship” with Father.
Juvenile court proceedings
A dependency petition was filed in March 2020, pursuant to section 300, subdivisions (b)(1) (failure to protect), (g) (Father incarcerated without provision for support) and (j) (sibling abused or neglected). Father was listed on the children's birth certificates, which were attached to the detention and section 366.26 reports.
Mother appeared at the detention hearing. Father was not given notice of the hearing and did not appear. Mother confirmed that Father was “the alleged father, ” but the court did not make further inquiry regarding parenthood.
Attorney Jessica Martinez was appointed for Mother. Attorney Erin Moore was appointed for Father as an “alleged father.” The court found a prima facie case that the children came within section 300.
At the request of Mother's counsel, the court ordered that she be provided services, including substance abuse treatment. Mother was granted a minimum of four hours per week of monitored visitation. All visitation was virtual due to COVID-19. Father's counsel said nothing at the hearing, and visitation for Father was not discussed.
The court ordered the prison to produce Father for a May 21 jurisdiction/disposition hearing. The department mailed notice of the hearing to the prison addressed to Father; a certified mail receipt was signed by an “Agent.” The department also sent letters requesting that Father contact them. On May 6, Father returned one of the letters to the department and wrote on the back that he wished to be present at the hearing and “take the steps necessary to be custodial parent.”
Neither parent appeared for the initial jurisdiction/disposition hearing. Father was not transported due to COVID-19. The court noted that Father was the “alleged father.”
After a pretrial conference that neither parent attended, the court continued the case for a jurisdiction/disposition hearing. All counsel waived notice.
Mother but not Father appeared at the hearing. The department announced a “settlement” with Mother: she would rest on jurisdiction and disposition and would receive visits four hours a month supervised by the maternal grandmother, or if grandmother was unavailable, two hours a month supervised by the department. Counsel for both Mother and Father rested on jurisdiction and disposition.
The court's written findings state that the parents knowingly and intelligently waived their right to a court trial, their privilege against self-incrimination, and their rights to confront and cross-examine witnesses, subpoena witnesses, and present evidence, and that they understood the nature of the allegations and possible consequences of their submission. However, no such advisements or waivers occurred in the oral proceedings, and the record does not include a written waiver of rights.
The court received all reports into evidence. The court sustained the petition. (§ 300, subds. (b), (g) & (j).) The court bypassed reunification services for Mother based on her prior resistance to court-ordered drug or alcohol treatment. (§ 361.5, subd. (b)(13).) The court set a hearing for October 15 to select a permanent plan (§ 366.26). All counsel waived notice.
The clerk mailed Father a notice advising him that the court set a permanent plan hearing pursuant to section 366.26, and if he wished to appeal that ruling, he must file a notice of intent to file a writ petition, and must file a writ petition within 10 days of filing the record. A blank writ petition and notice of intent were enclosed.
Neither parent filed a writ petition. The court issued an order that the prison produce Father for the 366.26 hearing. The 366.26 report included a letter from Father in which he requested prepaid phone calls to the...
To continue reading
Request your trial