Opinion
B279815
09-26-2017
In re E.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel and Julia Roberson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK53696) APPEAL from an order of the Superior Court of Los Angeles County. Emma Castro, Commissioner. Affirmed as to E.S., and conditionally reversed with directions as to Z.H. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel and Julia Roberson, Deputy County Counsel, for Plaintiff and Respondent.
____________________
Appellant R.S. (mother) challenges the juvenile court's order terminating her parental rights to two of her children, son E.S. (now 14 years old) and daughter Z.H. (now five years old). We affirm the order of termination as to E.S. As to Z.H., we conditionally reverse the order for compliance with the inquiry and notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
FACTUAL AND PROCEDURAL BACKGROUND
The Petition, Detention and Case Plan
On January 30, 2013, when E.S. was two weeks shy of turning 10 years old and Z.H. was seven months old, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of the children under Welfare and Institutions Code section 300. As amended and sustained, the petition alleged that the marijuana use and history of domestic altercations by mother and Z.H.'s presumed father, D.H., posed a danger to the children. The children were detained; E.S. was placed with a maternal relative in Los Angeles and Z.H. was placed with her paternal grandmother (the grandmother) in San Diego County.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
D.H. is not a party to this appeal. E.S.'s alleged father is also not a party; his whereabouts were unknown throughout the case.
The juvenile court ordered mother and D.H. to complete 10 random or on demand drug tests, with any missed or positive tests requiring enrollment in a full drug rehabilitation program, and to complete individual counseling to address domestic violence and drug use as a parent. Mother and D.H. were granted monitored visitation with the children three times a week for three hours per visit, with visits to be liberalized to unmonitored upon six negative drug tests and compliance with the case plan.
The Six-Month Review Hearing
For the six-month status review hearing on September 18, 2013, DCFS stated that both caregivers reported that mother and D.H. were not consistently visiting. E.S. told the social worker: "My mother does not come to see me. I haven't seen my mother in a long time." He was in therapy to address feelings of sadness about mother. E.S.'s caregiver had repeatedly invited mother to come to her home and to attend E.S.'s swimming lessons, but mother never showed. The grandmother stated that mother and D.H. had only visited Z.H. twice during the review period, that Z.H. did not seem bonded to mother, and that mother did not try to soothe Z.H. when she cried.
During the review period, mother tested positive for marijuana three times (Mar. 19, Apr. 11, & July 11, 2013), missed six drug tests (Apr. 19, May 2, 17, June 4, July 22, & Aug. 26, 2013), and tested negative twice (June 20 & Aug. 16, 2013). She completed 12 weeks of group counseling and domestic violence/anger management courses. D.H. also had numerous missed or positive drug tests and had completed anger management services. DCFS received reports that mother and D.H. had several domestic violence altercations during the review period. The juvenile court continued reunification services.
The 12-Month Review Hearing
For the 12-month status review hearing on March 19, 2014, DCFS reported that both children were now living with the grandmother in San Diego County. E.S. continued in weekly therapy. Mother and D.H. contacted the children by telephone or text six times (Oct. 23, 31, Nov. 9, 12, & Dec. 11, 25, 2013). E.S. told the social worker, "'I get happy when my mom comes to visit me but I don't get really happy when my mom comes to visit me.'" When asked to explain, E.S. shrugged his shoulders. E.S. further stated, "'I want to stay with my grandmother. I feel safe, I love my mother but I'm not ready to go back home.'" Mother and D.H. continued to engage in domestic disputes and law enforcement was called to their home more than once during the review period. The November 19, 2014, Review Hearing
A later report states that E.S. was placed with Z.H.'s grandmother on October 7, 2013, but does not indicate the reason for the move.
In a November 19, 2014, last minute report, DCFS reported that mother had enrolled in individual counseling, had completed parenting education, and had a negative on-demand drug test. Mother was trying to maintain telephone contact with the children, but as of October 2014, she did not have a working telephone. Her relatives tried to call the children on her behalf, but the grandmother did not return the calls and found one of the relatives to be rude. Mother and one of her relatives attempted to visit the children in person, but the grandmother did not allow the visit because mother "'just popped up.'" Mother and D.H. were living together in Los Angeles but were planning to move to San Diego County. The juvenile court ordered DCFS to continue reunification services and to assist mother and D.H. with a visitation schedule. The May 20, 2015, Review Hearing
In a report dated May 20, 2015, DCFS reported that the children remained stable in the care of Z.H.'s grandparents, whom E.S. referred to as "'Tutu'" and "'Papa,'" and with whom Z.H. was also very bonded. The grandmother had terminated E.S.'s therapy in September 2014, due to a disagreement with the therapist, but had enrolled him in a counseling/mentor program at church. Mother had six negative drug tests between November 2014 and April 2015. Mother was terminated from her individual counseling in November 2014, due to poor attendance; she reinstated her counseling services in February 2015, but failed to attend numerous sessions thereafter.
DCFS reported difficulties creating a visitation schedule for mother and the children due in large part to the distance between Los Angeles and San Diego County and the fact that mother's work schedule varied from week to week. Mother called the children two to three times during the review period. Mother and D.H. visited the children on March 31, 2015. The children appeared "content" and "neutral" around mother and D.H. E.S. reported that he wanted to remain living with his caregivers. There were continued reports of domestic violence between mother and D.H.; the social worker observed scratches on D.H.'s neck.
At the hearing on May 20, 2015, the juvenile court set the matter for a contested section 366.26 hearing and ordered DCFS to facilitate visits. The August 24, 2015, Review Hearing
In a report dated August 24, 2015, DCFS stated that the children were continuing to do well in their placement. DCFS was trying to facilitate more in-person visits with mother, but had difficulty arranging for monitors and transportation to San Diego County. Mother and D.H. wanted to attend Z.H.'s birthday party on June 13, 2015, but the grandmother did not want to invite them because they had disrupted the prior year's celebration and were not contributing financially to the party. The social worker proposed alternative dates for a private celebration, but mother and D.H. did not respond. The grandmother took Z.H. to Los Angeles and they went to mother's and D.H.'s home on June 9, 12, and 13, 2015, but mother refused to visit Z.H. because mother "'had a cough.'" According to the grandmother, mother "'didn't poke her head out to wave' or attempt any type of contact."
Mother and D.H. attended E.S.'s sixth grade graduation on June 18, 2015, and the visit went well; both children appeared comfortable with mother and D.H. The grandmother reported that mother "'rarely called'" the children and that the calls were short in duration. Mother explained that she did not have a good relationship with the grandmother, who monitored the calls on speaker phone, and that there was often a lot of noise in the background. After speaking with the social worker, mother called E.S. on July 31, 2015 for "'about five minutes'"; twice on August 1, 2015; "'briefly" on August 2, 2015; and on August 4 and 13, 2015. E.S. told the social worker he wished mother would visit or call him more often and he wanted to remain in his placement. He told the grandmother he was sad that mother did not contact him very often. DCFS was assisting the grandmother in locating a new therapist for him.
Mother was arrested on June 29, 2015, for domestic violence with D.H. and incarcerated until July 13, 2015.
On August 24, 2015, the juvenile court terminated reunification services, but allowed mother and D.H. to have monitored visitation as previously ordered. The December 28, 2015, Reports
DCFS reported that Z.H.'s grandparents wanted to adopt both children and were meeting all their needs. E.S. wanted to remain in their care. The grandmother believed mother's and D.H.'s visits should be reduced because they were distracting and caused the children sadness and confusion afterwards.
In a December 28, 2015, last minute report, DCFS stated that mother was calling the children more often since the last court date. While the grandmother was initially upset that mother called either too early or too late in the day, mother began following a structured call schedule. The social worker acknowledged having mistakenly thought mother's visits were terminated after the last court hearing and had not facilitated visitation for two months from late August 2015 through late October 2015. Per mother's request, the social worker agreed to allow mother to ride with her to San Diego for the social worker's monthly visits, but the social worker often had to reschedule, resulting in mother being unable to go along.
Mother informed the social worker that she had tried to visit the children at the grandmother's home on the weekend of October 24, 2015, but the grandmother did not allow the visit. The grandmother explained that she was not comfortable having mother visit without a DCFS monitor present and thought that mother was supposed to visit on October 27, 2015. A visit scheduled in November 2015 did not occur after the grandmother was hospitalized. Mother and the children had a successful visit for more than three hours on December 4, 2015. Neither mother nor the grandmother confirmed a visit planned for December 15, 2015. DCFS was still assisting the grandmother with enrolling E.S. in therapy. The February 22, 2016, Report
DCFS reported the children were still doing well in their placement. Mother's last in-person visit was in December 2015. She continued to communicate telephonically. The grandmother reported that at the prior court hearing, she and mother got into an argument and that E.S. stated he no longer wanted to visit mother. In January 2016, E.S. told the social worker he wanted to remain with his caregivers but still have contact with mother. The social worker was trying to locate additional staff to assist with monitoring visits. On February 22, 2016, the juvenile court ordered DCFS to set up a written visitation schedule for mother. The April 5, 2016, Report
Per mother's request, DCFS was trying to schedule a meeting to address mother's visitation concerns. Mother complained that she had been unable to reach the grandmother since the last court hearing. The grandmother told the social worker that mother was calling outside the set schedule. The grandmother felt that mother was trying to bribe E.S. to say he wanted to go back with mother. The grandmother heard mother tell E.S. during the December visit, "'I have four pairs of Jordans for you at home, don't you want to tell [the] Court that you want to come home?'" When privately interviewed, E.S. told the social worker that he did not want to speak to or visit mother because she did not really care for him and seemed to only want to contact him near court dates. He denied being told by anyone to make such statements. Mother complained that she was not able to contact E.S. on his birthday. The grandmother explained that she had been hospitalized and was unable to facilitate a call. Mother did not respond to the social worker's request for an alternative visit.
At a hearing on April 5, 2016, the juvenile stated that it did not believe the grandmother was trying to thwart mother's visits.
May-December 2016 Further Visitation Issues
On May 26, 2016, mother filed a walk-on request asking the court to admonish the social worker and the grandmother for failing to follow the court's orders to facilitate visitation, and to replace the children from the grandmother's home. In a July 15, 2016, last minute report, DCFS stated that it had met with mother and one of her relatives on April 8, 2016 to address ongoing visitation issues. DCFS facilitated a visit on April 25, 2016, for about three hours, during which E.S. showed no interest in interacting with mother. During the visit, he privately told the social worker he did not believe mother's interest in visiting him was sincere. Z.H. was initially hesitant toward mother and clung to the grandmother, but eventually interacted with mother, who was playful and attentive.
DCFS facilitated visits for mother on May 19 and June 2, 2016. During both visits, E.S. again showed no interest in interacting with mother; Z.H. was comfortable playing with mother and the grandmother. E.S. was back in therapy.
Mother gave birth to a daughter on June 16, 2016.
At a hearing on July 15, 2016, the children' counsel requested that mother's visits be limited to one per month and disclosed that E.S. wanted the court to know that he did not want to visit mother. Mother's counsel opposed the request. The juvenile court granted the request, reducing the visits to one per month and ordered DCFS to make efforts to facilitate two visits if possible. The court acknowledged that the distance to San Diego County and the competing schedules of mother, the grandmother and the social worker had made it difficult for visits to take place. The court was surprised at the number of visits that had actually occurred and "appreciate[d]" DCFS's efforts. The court twice pointed out that it was not finding the grandmother had interfered.
Mother and her new baby visited the children on August 29, October 1, and November 19, 2016. At a hearing on October 4, 2016, the juvenile court denied mother's request for unmonitored visits. On October 28, 2016, the court denied mother's request for her maternal great aunt to be a monitor; DCFS did not believe the aunt could remain neutral. Mother was calling the children weekly until November 2016, when she started calling only once a month.
Mother's Three Section 388 Petitions
On December 23, 2015, March 23, 2016, and July 14, 2016, mother filed three separate section 388 petitions. In each, she sought reinstatement of reunification services and/or unmonitored visitation, stated that she was participating in services, and claimed that the grandmother was thwarting visits by failing to return her calls or allowing her to visit. The juvenile court summarily denied all three petitions. The December 19, 2016, Contested Section 366.26 Hearing
Mother testified that she visited the children once or twice a month and had previously asked for more frequent visits. She thought her relationship with the grandmother had improved over the last year. When asked by the juvenile court if she was opposed to the termination of her parental rights, mother responded, "Not really." She thought the grandmother was doing a good job with the children. She believed the children wanted to stay with the paternal grandparents and she had heard Z.H. call the grandmother "Mom." When the court asked E.S. if he wanted to be adopted by the paternal grandparents, he responded "yes." He enjoyed visits with mother, but wanted it to be a grownup's decision whether visits continued.
The juvenile court found the children were adoptable and that no exception to the termination of parental rights applied. The court acknowledged there had been issues with visitation due to the children residing in San Diego County. However, the court concluded that "while I may find that you've had, at least this year, what I would call regular visitation, given the distance between your home and their home, the second most important prong of the exception has not been met." The court terminated mother's parental rights to E.S. and Z.H. This appeal followed.
DISCUSSION
I. Termination of Parental Rights
Once a juvenile court has terminated reunification services and determined that a child is adoptable, "the court shall terminate parental rights unless," among other exceptions, "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Indeed, "[a]fter the termination of reunification services, the parents' interests in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 317, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The parent bears the burden of proving the beneficial parent-child relationship exception applies. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-954.) "Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505.) As a result, even after reunification services are terminated, visitation between a parent and child continues unless the court finds that visitation would be detrimental to the child. (Id. at p. 1504, citing § 366.21, subd. (h).) In addition, once the court grants visitation, "it must also ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur." (In re S.H. (2003) 111 Cal.App.4th 310, 313.)
The crux of mother's argument on appeal is that both the juvenile court and DCFS failed to implement and apply her court-ordered visitation, which had the disastrous result of making it impossible for her to satisfy the beneficial parent-child relationship exception to the termination of parental rights. DCFS argues that mother has forfeited any issue regarding visitation because she failed to specifically raise such objections at the section 366.26 hearing and she failed to directly appeal from prior court orders addressing visitation, such as the court's summary denials of her three section 388 petitions and the July 15, 2016, order reducing her visits to once per month. "An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. [Citation.]" (In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.) DCFS makes a valid point. But even were we to address the issue here, we would find that mother has failed to show the juvenile court's order terminating her parental rights should be reversed under section 366.26.
We agree with DCFS that "mother overstates the case when arguing that DCFS and the court failed to ensure she received significant court-ordered visitation from the March 20, 2013 disposition hearing onward." The record shows that for the first six months of the reunification period, E.S. was residing with a maternal relative in Los Angeles. Yet, despite the relative's repeated invitations to mother to come to the relative's home and to attend E.S.'s swimming lessons, mother never showed. E.S. told the social worker he had not seen mother in a long time and he wished she would visit. He was receiving therapy to address his feelings of sadness caused by her failure to visit him. Mother only visited baby Z.H. twice during this time.
During the next six months, during which both children were living in San Diego County, mother only minimally took advantage of visitation opportunities. Mother only called or texted the children six times. By October 2014, which was nearly 20 months after the children had been detained, mother reported the lack of a working phone. E.S. reported that he was happy to see mother on visits but was not really happy.
On November 19, 2014, the juvenile court ordered DCFS to set up a visitation schedule for mother. In its next report on May 20, 2015, DCFS admitted having difficulty creating such a schedule due in part to the distance between Los Angeles and San Diego County and because mother's work schedule varied from week to week. DCFS, however, facilitated a visit on March 31, 2015, in which the children seemed "content" and "neutral." But during the six months between November 2014 and May 2015, mother had only called the children two to three times.
In August 2015, DCFS reported continued problems creating a visitation schedule due in part to difficulties arranging for monitors and transportation. It is true, as mother points out, that the grandmother opposed mother's attendance at Z.H.'s birthday party on June 13, 2015. But when DCFS tried to schedule a separate celebration, mother did not respond. Additionally, the grandmother took Z.H. to mother's home in Los Angeles three times in June, including on the date scheduled for the party, but mother refused to visit Z.H., claiming she had a cold. Mother did not even poke her head out of the window or wave to Z.H. DCFS facilitated mother's attendance at E.S.'s sixth-grade graduation on June 18, 2015, but mother was later arrested on June 29, 2015, for domestic violence and incarcerated for two weeks.
DCFS concedes that after mother's reunification services were terminated on August 24, 2015, which was two years and six months after the children's removal from mother, the social worker admittedly erred by not working to facilitate visits for two months from late August 2015 to late October 2015, due to a mistaken belief that mother's visits had been terminated. However, DCFS facilitated a successful visit on December 4, 2015, but mother failed to confirm a visit scheduled for December 15, 2015.
Mother complained that she was unable to reach E.S. on his birthday in February 2016. The grandmother explained that she was in the hospital and unable to facilitate a call. Moreover, mother did not respond to the social worker's request for an alternative visit. DCFS facilitated visits on April 25, May 19, and June 2, 2016, during which E.S. showed no interest in interacting with mother. He told the social worker he no longer wanted mother to visit. On July 15, 2016, the juvenile court reduced mother's visits to once per month. DCFS facilitated visits on August 29, October 1, and November 19, 2016.
In sum, while the record shows, and DCFS admits, that DCFS had certain difficulties implementing the court's visitation order to the fullest extent, the record also shows that mother herself rarely took full advantage of the visitation hours allowed her, and did not do so at all during the first year of this nearly three-year case. During that first year, mother never visited the children up to the weekly maximum of nine hours (three times a week for three hours at a time) and rarely called them. She never once accepted an invitation to visit E.S. or attend his swimming lessons while he was living in Los Angeles. His feelings of sadness at mother's failure to consistently visit him led to his need for therapy throughout this case. Mother's failure to maintain consistent and regular visitation cannot be blamed solely on the juvenile court or DCFS.
Mother does not otherwise address the second prong of the beneficial parent-child exception to termination of parental rights, i.e., showing that "'her relationship with the child[ren] "promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." [Citation.]'" (See In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) Thus, we will not do so either. An appealed judgment or order is presumed to be correct and "'error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "We will not develop the appellants' arguments for them." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
II. ICWA
Under the ICWA, if there is a reason to believe a child who is the subject of a dependency proceeding is an Indian child, the child's Indian tribe must be notified of the proceeding and its right to intervene. (25 U.S.C. § 1912(a); § 224.3, subd. (b).) In addition, the juvenile court and DCFS have an affirmative and continuing duty to investigate and obtain, if possible, the information necessary to give the required notices. (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4)(A); In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1167-1168.) Only a minimal showing is required to trigger the ICWA's inquiry and notice obligations and may be met by a mere suggestion of Indian ancestry. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254, 258; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408.)
Mother argues, and DCFS concedes, that it failed to comply with the ICWA. Z.H.'s presumed father, D.H., represented he had Indian heritage in an ICWA-020 form (though he did not identify any tribe), and he told the dependency investigator the grandmother would have further information about the family's heritage. At the dependency hearing, the juvenile court ordered DCFS to notice the Bureau of Indian Affairs (BIA) and all appropriate tribes with return receipt requested. However, the record does not reflect that DCFS ever spoke to the grandmother or other known paternal relatives to gather further information about the family's possible heritage. The record also does not reflect that ICWA notices were sent to the BIA (or any other entities), as ordered by the juvenile court or that the court expressly made findings under the ICWA based on D.H.'s claimed heritage.
"[A]lthough Mother is not the parent with alleged Indian heritage, she still has standing to raise the issue of ICWA compliance." (In re B.R. (2009) 176 Cal.App.4th 773, 779-780; In re A.B. (2008) 164 Cal.App.4th 832, 839, fn. 4; In re Jonathon S. (2005) 129 Cal.App.4th 334, 338.)
The appropriate remedy is to conditionally reverse and remand the order terminating mother's parental rights to Z.H. Upon remand, DCFS should (1) further investigate D.H's claimed ancestry by, at a minimum, interviewing the grandmother and other known paternal relatives about the family's possible Indian heritage, (2) notice any identified tribes, the BIA, and the Secretary of the Interior in accordance with the ICWA and California law (§ 224.2), and (3) submit all notices, signed return receipts, and any tribal responses received to the juvenile court. If no entity indicates Z.H. is an Indian child, then the juvenile court's original section 366.26 order shall remain in effect. If the juvenile court otherwise concludes Z.H. is an Indian child, then it shall proceed in compliance with the ICWA. (See In re B.R., supra, 176 Cal.App.4th at p. 786; In re Michael V. (2016) 3 Cal.App.5th 225, 236; In re Breanna S. (2017) 8 Cal.App.5th 636, 656.)
DISPOSITION
The juvenile court's order terminating mother's parental rights to E.S. is affirmed. The court's order terminating mother's parental rights to Z.H. is conditionally reversed. As to Z.H., the matter is remanded to the juvenile court with directions to proceed in compliance with the inquiry and notice provisions of the ICWA and California law. If, after proper notice is given, the juvenile court finds that Z.H. is an Indian child, the court shall proceed in accordance with the ICWA and section 224 et seq. If, however, the juvenile court finds that Z.H. is not an Indian child, the court shall reinstate the order terminating mother's parental rights to Z.H.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT