Persons Coming Under the Juvenile Court Law. Monterey Cnty. Dep't of Soc. v. J.M. (In re J.B.)

• Decision Date: 30 March 2016
• Docket Number: H042873
• Court: California Court of Appeals Court of Appeals
• Parties: In re J.B., et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.

In re J.B., et al., Persons Coming Under the Juvenile Court Law.

MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. J.M., Defendant and Appellant.

H042873

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

March 30, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. J47706, J47707)

In March 2014, the Monterey County Department of Social and Employment Services (Department) filed two petitions under Welfare and Institutions Code section 300, subdivisions (b) and (g),¹ alleging the failure of the Mother, I.B., and Father, J.M., to protect and supervise their son, J.B. (11 months old; now three), and their daughter, L.B. (a newborn, now two; collectively, the minors). At the time of L.B.'s birth, Mother and L.B. tested positive for methamphetamine. L.B. was placed in protective custodyand was subject to immediate placement into foster care after her discharge from the hospital. Arrangements were made for J.B. and his two older half-siblings, C.B. (now 12) and JD.B. (now 5), to live temporarily with their maternal aunt. The Department alleged that Mother had a history of substance abuse and an extensive history with child protective services. It also alleged that Father had a history of substance abuse, an extensive criminal record, and was incarcerated.

Reunification services were provided to Mother and Father. Father was imprisoned outside the county throughout the time services were offered. The court terminated Father's services at the six-month review hearing in October 2014. Mother's services were terminated in May 2015, and the court set a selection and implementation hearing pursuant to section 366.26 (.26 hearing). In September 2015, shortly after he was released from prison, Father filed a petition pursuant to section 388 seeking an order vacating the .26 hearing and requesting custody of the minors, or, alternatively, reunification services. On September 29, 2015, the court denied Father's section 388 petition. It then conducted a .26 hearing that was contested by Father. The court (1) found the minors to be adoptable by clear and convincing evidence, and (2) ordered the termination of Mother's and Father's parental rights.

Father appealed from the order denying his section 388 petition. He also appealed from the order after the .26 hearing. But Father presents no argument challenging these orders. Instead, he contends the juvenile court erred throughout the proceedings by denying him visitation with the minors, and that his counsel was ineffective because he failed to raise the issue of visitation until he filed the section 388 petition. Father's appellate claims concerning issues of visitation are not cognizable on appeal, and his ineffective assistance of counsel claim lacks merit. We will therefore affirm the orders.

FACTS AND PROCEDURAL HISTORY

I. Initial March 2014 Petitions and Detention Orders

On March 6, 2014, the Department filed two petitions alleging that Mother and Father had failed to protect or supervise the minors. (§ 300, subd. (b).)² The petitions also alleged the minors had been left without any provision for support due to Father's incarceration. (§ 300, subd. (g).)

L.B. was born at Watsonville Community Hospital in March 2014. L.B. and Mother both tested positive for methamphetamine. Mother admitted having used methamphetamine during her pregnancy. A few days after her birth, L.B. was taken into protective custody to be placed directly into foster care after her discharge from the hospital. In addition, due to Mother's inability to maintain sobriety or to provide a safe environment for her children, the Department made arrangements for C.B., JD.B., and J.B. to live temporarily with their maternal aunt.

The Department alleged in the petitions³ that Mother had given birth to five children. Mother had a lengthy history with the Department "dating back to 2005 due to [M]other's substance abuse, [the] physical and sexual abuse of [the minors' half-sister, C.B.,] and neglect of the children." In April 2008, C.B. and Jo.B. were detained as a result of Mother's substance abuse and her sexual abuse of C.B. Jo.B. died in July 2008, two months after his birth. In May 2009, C.B. was returned to Mother's care. In November 2009, the dependency proceedings that had commenced in 2008 were dismissed. Since that time, there had been nine referrals.

Father had "a criminal and substance abuse history that impair[ed] his ability to care for his children." There was a four-year protective order issued by the court in February 2013 protecting Mother from Father's perpetration of domestic violence. Father was arrested shortly after L.B.'s birth and was in custody in the Monterey County Jail on multiple warrants.

On March 7, 2014, the court ordered the minors detained pursuant to section 319, subdivision (b).

II. April 2014 Jurisdiction/Disposition Report, Assessment, and Hearing

In its April 2014 jurisdiction/disposition report, the Department reported that C.B. and JD.B. had been placed with their maternal uncle and aunt. The minors, J.B. and L.B., had been placed in a concurrent foster home in Campbell.

While Mother was pregnant with JD.B., she met Father and they moved in together shortly thereafter. During her pregnancy with J.B., Father physically abused Mother, who reported the abuse to police. Father was arrested and was in custody at the time J.B. was born. Mother indicated that she had attempted unsuccessfully to end the relationship. After he was released from jail, Father moved into the one-bedroom trailer where Mother lived, despite the existence of a restraining order preventing him from contacting Mother. Shortly thereafter, Mother became pregnant with L.B. Mother said she had used methamphetamine only once during her pregnancy, and immediately thereafter went into labor.

Father was arrested on March 4, 2014, because he had failed to report to his probation officer. He was also charged with conspiracy, child endangerment, and selling or furnishing methamphetamine based upon Mother's report that he had supplied her with drugs while she was pregnant with L.B.

Father reported that he had begun smoking methamphetamine and drinking alcohol when he was 20, and that he had become addicted. This addiction resulted in his criminal prosecution for drug possession and drug sales. He had also been convicted ofbattery, assault, making criminal threats, and violation of a restraining order. He admitted that he had anger management issues that were exacerbated when he was under the influence of intoxicants. He also admitted that he had been physically abusive toward Mother. Father advised that Mother—contrary to her statements that she had used methamphetamine only once shortly before she gave birth to L.B.—began using methamphetamine when she was four-months pregnant with L.B., and she had continued to use methamphetamine once or twice a week throughout her pregnancy. Father stated that he would use methamphetamine with Mother and would supply her with the drug during her pregnancy.

Father expressed a desire to do whatever was required to be with the minors, but he had been unable to participate in most of his case plan due to his incarceration. Father had completed his workbooks and had regularly contacted the social worker to ask about the minors and to inquire what actions he needed to take. Although Father had said he would do whatever was required to be with the minors, including not resuming a relationship with Mother, he continued to try to contact Mother despite the existence of a restraining order. On April 2 and 3, for instance, he left a total of 45 voicemail messages for Mother.

There had been no visitation between Father and the minors because of Father's incarceration. Father advised that he expected to be released from jail on April 25, 2014. The Department recommended that (1) the minors be made dependents under section 300, subdivision (b), (2) the minors remain in out-of-home care, (3) the minors, C.B., and JD.B. be considered a sibling group (§ 361.5, subd. (a)(3)), (4) Mother and Father receive reunification services; (5) Mother receive supervised visitation, and (6) Father receive supervised visitation upon his release from custody.

In a family mental health assessment filed by Kelli McDougall, Psy.D., after the filing of the Department's report, Dr. McDougall noted that C.B. had said that Father " 'yells a lot' " and that Father and Mother fought and " 'he hit her.' " C.B. also said thatwhen Father "was 'being mean' to [Mother], they would . . . go visit a friend of [Mother's]. Later in the assessment, [C.B.] seemed to relax and admitted that [Mother] and [Father] 'should not be together.' " C.B. said that Mother had "tried to 'get away' from [Father] and that people kept telling him where they were living."

The jurisdiction/disposition hearing was held on April 22, 2014. Father (still in custody) appeared and was represented by counsel. Counsel for the Department stated that "the parents need to understand that [services] may be limited to just six months. We need to see some consistent hard work on their part." Father's counsel indicated that his client had completed his workbooks and anticipated being released from custody within a week. Father was "interested in being active in reuniting with his children." Father's counsel submitted on the question of jurisdiction. Neither Father nor his counsel raised the issue of visitation.

The court sustained the allegations of the petitions, found it had jurisdiction over the minors pursuant to section 300, subdivisions (b) and (g), and adopted the recommendations of...