From Casetext: Smarter Legal Research

In re H.C.

California Court of Appeals, Second District, Third Division
Mar 20, 2008
No. B200027 (Cal. Ct. App. Mar. 20, 2008)

Opinion


In re H.C. et al, Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.C. et al, Defendants and Appellants. No. B200027 California Court of Appeal, Second District, Third Division March 20, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court No. CK51578 of Los Angeles County, Jan Levine, Judge. Reversed and remanded with direction.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant H.C.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant L.C.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

KITCHING, J.

INTRODUCTION

In this dependency proceeding, appellants are L.C. (Mother) and H.C. (Father), the parents of H.C., C.C., and K.C. The juvenile court terminated parental rights pursuant to Welfare and Institutions Code section 366.26. Mother and Father filed separate appeals.

To prevent confusion, the children shall be referred to by their first initials.

Unless stated otherwise, all statutory references are to the Welfare and Institutions Code.

Mother asserts that the order terminating parental rights must be reversed on the grounds that: (1) notice pursuant to the Indian Child Welfare Act (ICWA) was not proper; and (2) the juvenile court erred by finding the children were adoptable.

Father asserts that the order terminating parental rights must be reversed on the grounds that: (1) ICWA notice was not proper; (2) the juvenile court erred by summarily denying Father’s section 388 petition to modify the custody order; and (3) the juvenile court erred by finding that Father did not establish the section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights.

In response, the Department of Children and Family Services (DCFS) concedes that ICWA notice was not proper. The DCFS, however, asserts that otherwise the trial court did not err by terminating parental rights.

We find that ICWA notice was not proper. Therefore, we reverse the order terminating parental rights and remand the action to the trial court to comply with the ICWA notice statute. In all other respects, we affirm the findings and orders of the juvenile court. The juvenile court did not err by: (1) finding the children were adoptable; (2) summarily denying Father’s section 388 petition; or (3) finding that Father failed to establish the section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights. Thus, in the event that the Indian tribes do not respond to the ICWA notice, or decide not to intervene in the action (following applicable time periods), the juvenile court is ordered to reinstate the order terminating parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

1. Detention

On October 21, 2004, the DCFS responded to a referral that a child had been left on the street while the parents drove away. The parents did not know that they had left the child behind until they were several blocks away. They filed a missing persons report, but found the child at a nearby liquor store before the report was listed. The parents’ car did not have a car seat for the child. Because the police detained both parents, the social worker was unable to interview them.

The social worker interviewed H., a girl born in 2001. H. stated that Father left her at the corner and hit her. H. had asthma, but appeared stable. She continually used profanity. C., a girl who was born in 2004, was too young to make a statement. C. appeared to be physically and emotionally well. The DCFS placed the children into foster care.

2. The Juvenile Dependency Petition

On October 26, 2004, the DCFS filed a juvenile dependency petition pursuant to section 300, subdivisions (b) [failure to protect] and (j) [abuse of sibling]. The petition alleged that the parents placed H. in a detrimental and endangering situation. The petition noted that the police arrested Father for cruelty to a child likely to produce great bodily injury or death. The petition also alleged that Father had a prior criminal conviction for possession of a controlled substance.

The petition further alleged that H., and her older sibling T., who is not a subject of these dependency proceedings, were prior dependents of the court. After Mother failed to reunify with T., the court placed her into a permanent plan of legal guardianship. The juvenile court terminated its prior jurisdiction over H. on June 22, 2004, and placed her in the parents’ custody. The DCFS detention report also included a number of other prior referrals regarding this family.

The DCFS report noted a prior May 1, 2002, referral alleging caretaker absence. The referral included allegations that Father abducted H., then age 6 months. It was also alleged that the parents had a history of domestic violence, Mother had sought a restraining order against Father and she intended to terminate her relationship with Father. Mother indicated that her relationship with Father affected her relationship with T. By October 2002, Mother failed to comply with voluntary maintenance services and she reunified with Father. Mother and Father then resided in motels with H.

At the October 26, 2004, detention hearing, based in part upon the pattern of conduct evidenced by the prior referrals, the juvenile court declined to release the children back to the parents’ custody. The court found a prima facie case for detaining the children, gave the DCFS discretion to place them with a relative (parents not to live with children), and ordered services for the parents, including referrals for drug counseling and testing, domestic violence counseling, and parenting education. The court ordered two-hour monitored visitation a minimum of three times per week for the parents, which the DCFS had the discretion to liberalize.

3. Pretrial Resolution Conference

For the November 30, 2004, hearing, the DCFS indentified Father’s prior convictions: a 1983 possession of a firearm without a license and carrying a firearm on public streets; a 1989 and 1990 theft by shoplifting; a 1995 possession of a control substance; and a 1995 felony for probation violation. In addition, the police arrested Father for child cruelty on October 21, 2004. The district attorney indicated the 2004 case would be dismissed. Mother did not have any convictions.

Father admitted that he had several convictions. He denied any substance abuse problem and stated that he would be willing to drug test. He also stated that he was no longer involved in criminal activity and that he was an upstanding citizen. The social worker concluded that there did not appear to be a nexus between Father’s conviction and his ability to care for the children.

Mother acknowledged that she had previously participated in the DCFS services and provided completion documents for parenting, anger management, and domestic violence for herself and Father. Mother stated that with respect to her prior referral, her daughter T. did not want to return to Mother’s custody, so Mother allowed her to reside with the paternal grandmother. The previous social worker confirmed that Mother allowed T. to remain with the maternal grandmother. Mother had lost her job when she was arrested in October 2004.

The children were developing age appropriately. Since detention, the parents maintained consistent contact and visitation with the children. The foster mother reported that the visits went well and the parents acted appropriately.

The DCFS concluded that the parents had been negligent in failing to realize that three-year old H. had exited their automobile. The DCFS reiterated at that time, that there was no nexus between the Father’s criminal convictions and his ability to care for the children. Because there was a low risk to the children, the DCFS recommended the family receive voluntary maintenance services, including random drug testing.

At the hearing, the juvenile court ordered the parents to drug test. The court then granted DCFS discretion to release the children to the parents.

4. First Amended Juvenile Dependency Petition

On December 17, 2004, the DCFS filed a first amended juvenile dependency petition pursuant to section 300, subdivisions (b) & (j). In addition to the allegations in the original dependency petition, the first amended petition alleged that the parents had long histories of substance abuse and that they tested positive for marijuana on November 30, 2004, all of which placed the children at risk of physical and emotional harm.

The parents denied any history of drug abuse. The juvenile court dismissed the original petition and accepted the amended petition for filing. The court ordered weekly drug testing for the parents. The children remained in foster care. The court allowed Father to have holiday visits with the children and continued the matter for an adjudicatory hearing.

5. Incident of Domestic Violence and Drug Use

On December 30, 2004, Father slapped Mother causing her face to swell. The police arrested and incarcerated Father on a charge of corporal injury on a spouse.

In addition, in December 2004, Father tested positive for marijuana twice. Mother failed to show for one test, tested positive for one test and negative for one test. The forensic toxicology supervisor explained that the levels in the parents’ tests showed no significant change, indicating that the parents had not stopped using, but were using between tests.

6. Second Amended Juvenile Dependency Petition

On January 21, 2005, the DCFS filed a second amended juvenile dependency petition pursuant to section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (j) [abuse of sibling]. In addition to the allegations in the first two petitions, the second amended petition alleged that the parents had a history of domestic violence, with the recent altercation in December 2004, which placed the children at risk of harm.

Father pled no contest to the criminal charge of corporal injury on a spouse. His anticipated release date was March 12, 2005. During an interview with the social worker, Father denied hitting Mother. Father claimed Mother’s face was swollen from a toothache.

Mother, who was four months pregnant at the time, told the social worker that she and Father argued about the paternity of the unborn child. Mother stated that Father hit her, making her face swell. Mother then called the police.

The juvenile court dismissed the first amended petition and accepted the second amended petition for filing. The parties executed waivers of rights on the second amended petition. The juvenile court sustained the petition pursuant to section 300, subdivision (b) [failure to protect]. The court declared H. and C. to be dependents of the court. The court removed custody from the parents.

The parents signed a court-ordered disposition case plan. Pursuant to the plan, the court ordered reunification services for the parents including drug counseling and random testing, a 52-week domestic violence counseling program and marriage counseling. The court granted the parents monitored visitation and gave the DCFS discretion to liberalize to overnight weekend visits if the parents made progress.

7. April 2005 Review Hearing

By the time of the April 19, 2005, review hearing, Father was no longer incarcerated. Both Mother and Father had enrolled in domestic violence counseling at King-Drew Place of Family. The parents stated they were also participating in marriage counseling at their church, but did not provide verification.

With respect to drug testing, since January 2005, mother failed to show for five tests; she tested positive for marijuana once; she tested negative once and was excused from one test because of her hospitalization. After his release, Father participated in random drug testing. From March 21 to April 14, 2005, his three tests were negative. The social worker concluded that Father was motivated to comply with his case plan. Mother stated that she was willing to move out, if H. and C. could be returned to Father’s custody. The juvenile court gave the DCFS discretion to liberalize Father’s visits.

8. Mother Gives Birth to K.

In May 2005, Mother gave birth to K. a baby girl. The parents agreed to participate in voluntary family maintenance services.

9. July 2005 Six-Month Review Hearing

By the time of the July 19, 2005, six-month review hearing, Mother had completed ten sessions of domestic violence counseling. She failed to show for a drug test in April 2005, but tested negative since that time.

Father had completed eight sessions of domestic violence counseling and missed three sessions. Since April 2005, Father was a no-show for four drug tests. He tested negative on June 23, 2005. Father told the social worker that his three no-shows in May 2005 were due to his work schedule and that his July 5 no-show was because of a court hearing in a worker’s compensation case.

Mother and Father were also attending marriage counseling with the pastor of the Belmont Baptist Church. The pastor reported that the parents had attended some counseling sessions and were addressing the “family structure.” The parents also presented evidence of earlier marriage counseling at a different church before they changed churches in May 2005.

The parents visited H. and C. regularly, approximately three times per week since October 2004. The social worker reported that the children looked forward to their parents’ visits, were eager to return home and that H. was “extremely bonded” to Father and especially wanted to return home. The DCFS liberalized the visits to include unmonitored visits from 9 a.m. to 6 p.m. on Saturdays. The visits went well and the children appeared to like the visits. In addition, the child’s caretaker stated that the parents called the children every day. The social worker concluded that the parents were motivated to comply with their case plans and to reunify with the children. By this time, the children were both diagnosed with reactive airway disease, chronic wheezing.

At the July 2005 hearing, the caretaker informed the court that she could no longer care for the children. Given the parents’ recent set backs, the court was not ready to return custody of the children to the parents. Instead, the court continued the hearing and gave the DCFS discretion to liberalize visits to unmonitored overnight weekend visits, and instructed the social worker to find a suitable placement for the children.

10. The Continued Six-Month Review Hearing

By the continued August 1, 2005, continued hearing, the children remained placed with their prior caretaker, who agreed at the July 19 hearing to allow the children to remain with her on a short term basis. The DCFS concluded that the parents had not yet completed a sufficient number of domestic violence or marriage counseling sessions to ensure successful reunification.

The DCFS submitted a special request of $1,000 to pay for the parents’ domestic violence counseling. The DCFS further requested the court to schedule a progress hearing for 90 days and that it be allowed discretion to release the children to the parents.

The court ordered the DCFS to release the funds to pay for the domestic violence counseling. The court continued the matter for a contested hearing.

11. Juvenile Dependency Petition On Behalf of Baby Girl K.

As noted above, in May 2005, Mother gave birth to K., a baby girl. On August 16, 2005, the DCFS filed a juvenile dependency petition on behalf of K. pursuant to section 300, subdivisions (a) [serious physical harm]; (b) [failure to protect]; (j) [abuse of sibling].

In its corresponding report, the DCFS noted that Father failed to show for drug testing on July 19, 2005, the day that Father appeared in court. In addition, Mother failed to test on July 18, 2005.

The DCFS scheduled a Child Safety Conference to consider releasing K. to Mother’s custody, if Mother obtained a separate residence and maintained her compliance with the case plan without missing any tests. The children’s former foster parent agreed to have the children placed with her once she has an opening in approximately two more weeks. She also considered having K. placed with her if the baby was not returned to Mother. For the time being, the DCFS placed K. in a foster home convenient for the parents to visit.

At the August 17, 2005, hearing, the court found Father to be K.’s presumed father. The court gave the DCFS discretion to release K. to Mother, as long as Father was not in the home. The court declared the three girls to be a sibling group and ordered the DCFS to try to place them together. The court ordered monitored visits for Father and unmonitored visits for Mother. The court scheduled an adjudication hearing.

12. Baby Girl K. Is Not Returned to Mother’s Custody

By the August 30, 2005, hearing after the Child Safety Conference, the DCFS determined that K. should not be released to Mother’s custody.

Both parents denied current use of cocaine or other drugs. Mother, however, failed to show for a drug test on August 17, 2005. The social worker noted that Mother tested positive for marijuana while pregnant with K.

Father failed to show for a drug test on August 24, 2005. In addition, Father’s positive drug test sample for cocaine was re-tested, which confirmed the positive result. In any event, Father denied using cocaine. Father also stated that the last time he used marijuana was in December 2004. The juvenile court granted Father’s request to have Father’s positive test sample re-tested by a private laboratory.

Moreover, while Mother denied she was being evicted, Mother’s landlord confirmed that Mother was being evicted from her property. The parents both indicated to the social worker that Father had moved out of the home. Mother’s landlord, however, explained that since November 2004, Father resided with Mother. In addition, the social worker found Father at Mother’s home on two different visits, but observed that there were no signs that Father was living in the house. The parents responded that Father was renting a room elsewhere.

Mother acknowledged to the social worker that they had a history of domestic violence. Mother’s counselor reported that Father was controlling, and that Mother was afraid of Father. Both parents continued to participate in domestic violence counseling.

With respect to visitation, the parents told the social worker that they had not had a visit with K. since she was detained. K.’s foster mother, however, reported that Mother had eight-hour unmonitored visits on August 23 and August 28. The siblings all visited together on August 28. The social worker located a home for all three children and placed them there on August 30, 2005. At the August 30, 2005, hearing, Mother’s attorney acknowledged that the parents’ housing situation was unstable and that Mother was looking for a new residence.

The juvenile court found the parents partially complied with their case plan, and that they regularly and consistently visited the children. The court allowed Mother unmonitored visitation and gave the DCFS discretion to liberalize to overnight weekend visits. The court ordered that Mother was not to monitor Father’s visits.

13. Mother Finds New Residence

By September 19, 2005, Mother had located a room in a motel. Mother told the social worker that she would not live with Father and that Father was living in San Jacinto, close to where he worked.

In September 2005, Mother tested negative for drugs and missed one test. Father failed to show for one drug test since the last court date.

By this point in time, the DCFS was still unable to confirm the parents’ marriage counseling. The social worker called the parents’ church a number of times, but received no response.

14. Jurisdiction and Disposition Hearing for K.

At the October 28, 2005, hearing, the parties reached an agreement regarding jurisdiction and disposition of K. The juvenile court sustained the petition pursuant to section 300, subdivisions (a), (b) and (j). The court declared K. a dependent of the court. The court ordered family reunification services for the parents.

The court granted Mother unmonitored visitation and gave the DCFS discretion to liberalize to overnight visits. The court granted Father monitored visits and gave the DCFS discretion to liberalize. The court ordered Mother not to monitor Father’s visits.

15. Drug Testing Schedule

By November 2005, the parents agreed to randomly drug test twice each month at King-Drew Place of Family. The social worker agreed to find Father a location where he could test on Saturdays. Until then, Father agreed to comply with the random drug testing schedule.

16. Social Worker Home Inspection

On December 22, 2005, the social worker visited the parents’ home. The children were present for a Christmas visit. The home was appropriate and clean. Before the extended Christmas visit, the parents had monitored visitation. Following this visit, the parents had unmonitored day visits with the children. According to the foster agency, the visits went so well that the parents and the foster mother agreed to “co-parent” the children.

17. Twelve-Month Review Hearing for H. and C. and Six-Month Review Hearing for K.

On January 12, 2006, the juvenile court conducted review hearings. By this time, the parents denied they were living together. The social worker noted, however, that the parents were together at each visit. Mother stated that a friend monitored Father’s visits. Mother also stated that Father worked in construction and supported her.

At one point, Mother told the social worker that she was living in a hotel and did not know where Father was living. The following day, however, the social worker visited Mother at her residence and found the parents together. The residence was clean and stocked with sufficient food.

Mother anticipated completing her domestic violence counseling in March 2006. Mother failed to show for one drug test in December 2005, and tested negative for one test in October 2005.

The children were doing well in their placements. They enjoyed overnight weekend visits with parents and did not demonstrate any behavioral issues after the visits. The physical examination of H. noted that she should be referred for an evaluation for behavioral problems. A medical report regarding C. indicated a speech therapy and audiology referral.

In response to the notation that H. was having behavioral problems, the parents stated that she wanted to come home. The court ordered speech therapy and a hearing evaluation for C. The court ordered the DCFS to investigate allegations that H. was being mistreated in the foster home.

18. Incident of Domestic Violence

According to Ms. Price, the parents’ domestic violence counselor, on January 30, 2006, the parents were involved in a domestic violence incident. Ms. Price reported that Father locked Mother in the bathroom so that she could not attend the domestic violence session. Mother called the police. The police told Mother to leave the house. Mother reported that father kept guns in the house. Ms. Price reported that Mother stated she obtained a restraining order against Father.

19. February 2006 Review Hearing

By the time of the February 3, 2006, review hearing, neither parent had provided the social worker with the name of their marriage counselor at their church.

By this point, Mother had completed 26 domestic violence classes. She was participating in the discussion and making progress. The social worker was unable to contact Father’s domestic violence counselor.

With respect to drug testing, between August 5, 2005 and December 15, 2005, Father had one positive test for cocaine, one negative test, and eight no-shows. Since August 5, 2005, Mother had five negative tests and five no-shows.

The social worker investigated the parents’ allegation that the foster mother had mistreated H. The social worker concluded the allegation was unsubstantiated.

At the February 3, 2006, hearing, the juvenile court found that the parents were participating in their court-ordered programs, but that they needed to complete the programs. The court found compliance was partial. The court ordered the social worker to work with the parents to ensure they completed the marriage counseling. The court found a substantial probability that the children might be returned to the parents’ custody within the applicable time period. The court found that the parents consistently and regularly visited the children. The court also found that the parties had made significant progress in resolving the problems which led to the removal. The court continued reunification services to the 18-month date for H. and C., and the six-month date for K.

20. The DCFS Suspends Visitation

On February 10, 2006, the DCFS suspended visitation based upon the January 30, 2006, incident of domestic violence. The court ordered the parents’ visits to be monitored.

21. Juvenile Court Orders Background Check on Maternal Great- Grandmother

The maternal great-grandmother, Jacqueline E. (great-grandmother), was present for the February 10, 2006 hearing. She requested that the children be placed with her. The juvenile court ordered the DCFS to conduct a criminal background check to begin its assessment of the great-grandmother.

At the hearing, the DCFS noted that Mother confirmed the January 30, 2006 incident of domestic violence. Following the report of this incident, Father went to the counseling center to confront Mother’s counselor, Ms. Price, about reporting the incident. Ms. Price stated that Father was threatening and made her uncomfortable.

With respect to the recent incident of domestic violence, the court placed Mother under oath. Mother denied telling her counselor, Ms. Price, that Father locked her in the bathroom. Mother also denied telling Ms. Price that she called the police or that Father had guns. Mother acknowledged that the police came on the day in question, but stated that they came in response to a neighbor’s complaint about the family’s washing. Finally, Mother denied that she ever sought to obtain a restraining order against Father.

The court ordered at least three weekly unmonitored separate visits for the parents before the next hearing. The court also ordered the DCFS to address H.’s treatment in her former foster home and to interview the prior social worker.

22. Court Orders Children Placed with Great-Grandmother

At the March 1, 2006, hearing, the juvenile court ordered all three children placed with the maternal great-grandmother (great-grandmother). Because Mother and Father both attended a visit in violation of court’s separate visitation order, the court ordered monitored visitation for the parents with the great-grandmother serving as the monitor.

23. Children are Doing Well in New Placement

By the April 3, 2006, review hearing, the parents continued to reside together despite Mother’s statements to the social worker that she wanted to leave Father and obtain a divorce. Mother told the social worker that she had to go to a shelter. The social worker provided Mother with shelter referrals, but the parents remained together.

Mother also requested a bus pass because one of their vehicles was impounded and the other vehicle was not working. The social worker responded that Mother would need to travel to the DCFS office with written proof that she was attending her programs. Mother stated she would find a way, but never came to the DCFS office. Mother was also concerned that the great-grandmother wanted the children permanently. The social worker assured Mother that if she completed her programs, the children could be returned to her.

The children were doing well in the great-grandmother’s home. The children appeared happy and the great-grandmother stated the children had no problems. She stated that the parents came to visit once and there were no problems. The parents also had overnight visits. The parents continued to visit together in violation of court order.

24. Mental Health Assessment of H.

For the April 3, 2006, hearing, the court received a mental health assessment for H. The assessment concluded that H. was likely suffering from exposure to stressful events and instability in the home.

The great-grandmother reported that H. was manageable, but that her behavior included hyperactivity, mischievousness, slight defiance, and difficulty following directions. She slept and ate well, sometimes wet her bed at night and like visiting with Mother.

H.’s evaluator described H. as friendly and cooperative. The evaluator did not observe H. act out in a hyperactive or impulsive manner. The evaluator concluded that H.’s exposure to stressful events and instability in her home “could have traumatized her” and that her behavior could imply that she was “reliving the trauma.” The evaluator suggested that H’s skin irritations could be triggered or aggravated by the stress. The evaluator recommended early mental health intervention and consistent caregiver support.

25. Father is Incarcerated

On April 19, 2006, the police arrested Father for driving with a suspended license. The jail provided domestic violence classes but no drug testing. Since January 2006, Father had seven no shows for drug testing and two negative tests. The DCFS had no updates on whether Father was participating in domestic violence counseling. In addition, Father did not provide sufficient information to allow the social worker to investigate the status of marriage counseling.

Mother continued to participate in domestic violence counseling and to make progress. Mother maintained that she was drug-free. Since January 2006, Mother failed to show for nine drug tests. She tested negative once.

26. Contested Review Hearings

On May 25, 2006, the juvenile court conducted an 18-month review hearing for H. and C., and a six-month review hearing for K.

The social worker testified that Mother was uncomfortable with the great-grandmother monitoring the visits. Neither parent provided the social worker with certificates showing completion of domestic violence counseling, substance abuse counseling or marriage counseling. The social worker acknowledged that Mother had completed 34 sessions of the 52 week domestic violence class. Mother’s progress was good.

The social worker testified that Father was participating in domestic violence classes and that he could finish by August 2006. Father reported that he was doing well and that the classes were helping him.

Mother testified that she continued to attend domestic violence counseling and that she completed anger management and a parenting class.

By this time, the parents had not continued to regularly and consistently visit K. Following oral argument, the juvenile court found the parents were in partial compliance with their case plans. The court ordered the parents receive at least weekly visits at the DCFS offices. The court terminated reunification services for Mother and Father. The court scheduled a section 366.26 hearing.

27. The Section 366.26 Hearing

By the time of the September 27, 2006, hearing, the children were growing appropriately. There were no reported emotional, physical or mental problems. The children were comfortable with the maternal great-grandparents, calling them mom and dad.

The great-grandparents wanted to adopt the children. The great-grandparents were not opposed to the parents having monitored visits, so long as such visits were in the children’s best interests. H. stated that she was “fine” living with the great-grandparents.

The children had lived with the great-grandparents since March 7, 2006. Since that time, the parents had not maintained regular visitation with the children. The juvenile court continued the hearing for proper notice and a completed home study.

28. Interim Status Report

By November 8, 2006, the parents had arranged regular weekly visits at the home of the great-grandparents. The visits occurred without incident. The parents attended the visits together. The children played well together and appeared happy in their home.

29. Mother’s Section 388 Petition

On March 9, 2007, Mother filed a section 388 petition seeking return of the children to her custody. Mother stated that she had found a separate residence for herself and the children, and that she had tested negative for the past several months. She explained that she visited the children weekly and that they had a close relationship. Mother attached a certificate of completion from the domestic violence counseling class. The court granted Mother a hearing on the section 388 petition.

The children’s attorney informed the court that there had been an incident at the great-grandmother’s house involving Mother. The police were called. Counsel wanted the matter addressed quickly. In response, the court scheduled contested section 388 and 366.26 hearings for May 2007.

30. DCFS Completes Home Study of Great-Grandparents’ Home

By March 19, 2007, the DCFS had completed the home study of the great-grandparents’ home. The great-grandparents were attentive and nurturing towards the children. The children looked to the great-grandparents for affirmation when they accomplished something. The children were very attached and bonded with the great-grandparents. The great-grandparents were open to visitation with the parents. The DCFS reported that the parents visited the children sporadically.

31. The Altercation Between Mother and Great-Grandmother

By May 3, 2007, the DCFS completed its investigation into the altercation between Mother and great-grandmother. During the March 8, 2007 incident, the great-grandmother stated that the altercation resulted from Mother’s refusal to stop kissing baby girl K. on the mouth. Mother had Hepatitis B. Mother responded that it was not contagious. According to a public health nurse, Mother should not have kissed her children on the mouth and should have taken precautions when interacting with them.

The great-grandmother informed the social worker that on the day in question, Mother and Father came to the house cursing and yelling loudly. The maternal great-grandmother believed the parents were “high” and observed that Mother was foaming at the mouth while she was talking. Mother then bumped into the great-grandmother without saying excuse me. Mother later kicked the great-grandmother while they were sitting on couch. In response, the great-grandmother admittedly hit Mother. The police were called and made a report, a copy of which the DCFS was not able to obtain. The great-grandmother acknowledged that she was charged with battery and had to appear in court.

The social worker noted that despite the fact that Mother had completed a 52-week domestic violence program, based upon the altercation, it appeared that Mother had gained little insight into her anger management issues.

Mother claimed that she had been living with the great-grandparents during the recent time period. The great-grandparents denied this. In addition, the social worker concluded this was unlikely given that Mother and the great-grandmother did not have a close relationship. The social worker also noted that there was no physical evidence that Mother was living with the great-grandparents.

On April 26, 2007, the social worker transported the three children to a local restaurant for a visit with the parents. The parents failed to show up. The children were visibly upset about not seeing their parents. Mother called after the visits started to say that their car broke down.

By this time, the DCFS concluded that Mother was in partial compliance with her case plan. The DCFS also concluded that it would not be in the children’s best interests to be returned to Mother’s custody.

32. Status Update

By May 2007, the children were doing well in their placement and appeared happy in the home of the great-grandparents. The children were developing appropriately, without any emotional or mental problems. H. was in preschool and did her homework. C. was involved with speech therapy and her speech was improving. K. was also doing well.

The parents visited the children sporadically. Sometimes, they would visit every week and then sometimes, not at all. The parents arrived at the visits together. The maternal grandmother reported that the parents used much of their visit time harassing the grandparents.

The great-grandparents were not willing to monitor visits following the altercation with Mother. The great-grandmother also explained that the battery charge against her was dismissed.

33. Court Denies Mother’s Section 388 Petition

On May 7, 2007, following oral argument, the juvenile court denied Mother’s section 388 petition. The court found that Mother did not present sufficient evidence of changed circumstances. The court also found that returning the children to Mother’s custody was not in the children’s best interests.

34. Court Holds Contested Section 366.26 Hearing

Also on May 7, 2007, after denying Mother’s section 388 petition, the juvenile court initiated a section 366.26 permanency planning hearing. At the outset of the hearing, Father’s counsel asked for a continuance for two reasons: (1) the recent domestic violence incident and (2) so that Father could file a section 388 petition. The juvenile court denied the continuance. The court explained that with respect to the incident of domestic violence, the home study was complete, the parents were present, notice was proper and the girls were adoptable. With respect to Father’s anticipated section 388 petition, the court ruled it was untimely; the section 366.26 hearing had been on calendar since September 2006 for a sufficient amount of time, and there was no basis for Father not to be prepared to proceed with the section 366.26 hearing.

The court admitted a number of DCFS reports into evidence. The court then continued the hearing to allow the parents’ attorneys to cross-examine the social worker.

35. Father’s Section 388 Petition

On May 23, 2007, Father filed a “Request to Change Court Order.” Father requested that the children be returned to his custody. He explained that he had a full-time job as a construction worker and had complied with his probation by completing the domestic violence class. Father also asserted that the change in placement would be in the children’s best interests because he had visited them weekly until the March 2007 domestic violence incident. He asserted that the children were “extremely [bonded]” to him and that he could provide a safe living environment.

Attached to his petition were documents showing employment and insurance coverage for his children, a letter from a former foster mother in support of returning the children to the parents, and a February 13, 2007, completion report from his domestic violence program.

The juvenile court denied the petition. The court found that the requested change in placement would not be in the best interests of the children. In addition, on Father’s petition, the court wrote: “We are in [the] middle of [a] contested [section] 366.26 hearing. Court cannot hear separate [section] 388 now, however, court will consider best interests of children as part of current proceeding.”

36. Continued Section 366.26 Hearing

On June 13, 3007, the juvenile court proceeded with the contested section 366.26 hearing. Father called the social worker, Tracy Harrington, to the stand. Harrington testified that he was the family’s social worker for two years. Harrington testified about the frequency of the parents’ visits. He noted that he arranged visitation for two years. He testified that the parents visited at least weekly over the past three to four months, one hour of monitored visitation per week. During the visits the children played and talked with the parents.

Harrington testified that with respect to the two most recent visits Father was present for one and both parents were present for the other. Harrington also testified that Alice H., an approved monitor, arranged for some of the visitation. The great-grandparents also served as monitors for six to eight months until the domestic violence incident.

Harrington testified that the recently scheduled visit did not occur because he (Harrington) was sick. He further testified that some recent visits did not occur because of miscommunications about time and place.

With respect to the visits themselves, Harrington testified: “My personal opinion is I feel the children should have overnight visits with their parents. I feel they should have their day visits with their parents and if the day visits progress and there’s no problems, then overnight visits can be considered.” Harrington further testified that the visits he observed were appropriate, that the children were happy to see their parents, and they were affectionate to the parents. He testified that the children appeared to be sad when they left the parents. He also testified: “I can tell you since I am an employee of the [DCFS] if the parental rights are terminated, I am not of the opinion that the children should be adopted.” He thought the children would be sad if they no longer visited with the parents. Harrington described the parents’ home as clean.

Harington also testified that it was the DCFS’s recommendation to terminate parental rights. The recommendation was based in part upon the fact that the children were in a home with a completed home study. The DCFS had completed its investigation of the altercation between Mother and great-grandmother. The DCFS concluded that there are no concerns regarding the children’s safety in the home. The DCFS did not anticipate any impediment to completing the adoption. The children had lived with the great-grandparents since March 7, 2006, and they provided for the children’s daily needs.

Following the social worker’s testimony, the juvenile court then continued the hearing to June 18, 2007. At the hearing, the maternal great-grandfather, Robert E., testified. He testified that the children lived in his home for 16 to 18 months. Generally, the parents visited an average of twice per week.

Robert E. also testified that the parents did not live in his home when the children were placed with him. When visits occurred at his home, the parents did not feed the children, take them to school, or take them to medical appointments. Instead, the maternal great-grandmother fed the children and changed their diapers. Robert E. acknowledged, however, that he was generally at work and did not attend many of the visits.

Finally, Robert E. testified that he wanted to adopt all three children. He also testified that if he adopted the children, he would allow the parents to visit.

Counsel for Father then called Alice Harris as a witness. Harris was the head of the Parents of Watts Community Center, where some of the visits occurred for the past month. Harris monitored three visits, each for one hour, with the parents. The social worker was not present for two of the visits. Harris also monitored a visit at Father’s home.

Harris testified that the children asked for the parents when they arrived at the visits. The parents played with the children, who always cried when the visits were over. The parents escorted the children to their car and kissed them.

Father testified at the hearing. He testified that Mother and he visited the children together twice a week until Mother’s altercation with the great-grandmother. Some of the visits lasted an entire day. He testified that the children were sad after the visits and that they acted like they wanted to go with the parents.

At the visits, the parents played with the children. They played toy cars and Father taught them how to ride bicycles. Father testified that they took the kids to lunch and on shopping trips. Father also testified that the parents fed the children during visits at the great-grandparents’ home. He testified that he made peanut butter and jelly sandwiches and that he ate with the children. Finally, he testified that the children called the parents “Daddy” and “Mommy.”

Mother also testified at the hearing. She testified that over the past month, she had three visits with the children. Prior to that, Mother visited the children at the great-grandparents’ house. She was welcome there anytime and visited frequently. She also spent the night on a number of occasions. Mother testified that she worked around the corner from the great-grandparents’ home. She helped feed the children. She combed their hair and gave them baths. She maintained this schedule of visiting the children three to five times per week for a period of 16 to 17 months. Her visits ended at the great-grandparents’ home following the altercation with great-grandmother.

Counsel then offered closing argument. Counsel for the children joined with the DCFS in requesting that the court terminate parental rights.

The juvenile court noted that the parents regularly visited the children. The court, however, found that the parents had not ameliorated the problems which led to detention. The parents did not drug test enough to show they had resolved the history of drug abuse. The recent altercation between Mother and great-grandmother showed that Mother had not resolved the issues related to domestic violence. The court also noted that the case had significant drama, with domestic violence, drug charges, with Father in and out of jail, and incidents where anger overflowed and people came to blows. The court found that this type of turmoil was not in the children’s best interest and it kept the parents from regaining custody of the children. The court explained that the parents failed to present compelling evidence that termination of parental rights would be detrimental to the children. The court also found by clear and convincing evidence that the children were adoptable. The court terminated parental rights. Mother and Father timely filed separate notices of appeal.

CONTENTIONS

In her appeal, Mother contends that the order terminating parental rights must be reversed on the grounds that: (1) notice pursuant to the Indian Child Welfare Act (ICWA) was not proper; and (2) the juvenile court erred by finding the children were adoptable.

In his appeal, Father contends that the order terminating parental rights must be reversed on the grounds that: (1) ICWA notice was not proper; (2) the juvenile court erred by summarily denying Father’s section 388 petition to modify the custody order; and (3) the juvenile court erred by finding that Father did not establish the section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights.

DISCUSSION

1. ICWA Notice was Not Proper

The parties, including the DCFS, contend that ICWA notice was not proper. We agree.

The record shows that at the detention hearing for H. and C., Father informed the court that his mother’s side of the family was affiliated with the Heron or Huron tribe. With respect to H. and C., however, the DCFS did not send notices to the Heron or Huron Tribe. Likewise, with respect to the youngest child, K., there is no evidence of notice to any Tribe.

Thus, ICWA notice was not proper. The order terminating parental rights must therefore be reversed until proper ICWA notice is provided. If no tribe indicates that the children are Indian children, then the juvenile court must reinstate the order terminating parental rights. If a tribe indicates that the children are Indian, then the juvenile court is directed to proceed in compliance with ICWA.

2. Substantial Evidence Supports the Juvenile Court’s Finding that the Children Were Adoptable

Mother asserts that the juvenile court erred by finding that the children were adoptable. We review findings of adoptability for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) We conclude the finding is supported by substantial evidence.

“ ‘At a hearing under section 366.26, the court is required to select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. [Citations.] In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. [Citation.] . . . .’ ” (In re Lukas B., supra, 79 Cal.App.4th at p. 1153.)

“ ‘The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] . . . .’ [Citation.] ‘Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ ” (In re Lukas B., supra, 79 Cal.App.4th at p. 1154, italics omitted.)

In In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550, the only evidence that a minor was likely to be adopted was the testimony of the foster mother who wished to adopt the child. In addition, the opinion of a social worker constitutes substantial evidence that a child is likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)

In this case, there is substantial evidence supporting the juvenile court’s finding that the children were likely to be adopted. Pursuant to In re Roderick U. and In re Jennilee T., the fact that the great-grandparents wanted to adopt the children coupled with the opinion of the DCFS social worker that the children were likely to be adopted, constitutes substantial evidence that the children were likely to be adopted.

Mother, however, responds that the juvenile court erred by finding that the children were adoptable without further investigating the incident between Mother and the great-grandmother. Mother also asserts that C.’s speech therapy, H’s behavioral issues, the fact that the children were a sibling set and because there were other prospective adoptive families, shows that the juvenile court erred. We reject these assertions.

The DCFS presented evidence that it investigated the altercation, and there were no concerns about the children’s safety in the home. Moreover, the record shows that the battery charges against the great-grandmother were dismissed. Thus, contrary to Mother’s assertion, the DCFS fully investigated the altercation and found it was not an impediment to adoption.

Moreover, the additional issues raised by Mother do not show that the children were not adoptable. H.’s problems were not an issue in the great-grandparents’ home. C. was progressing with her speech therapy. Additionally, there was no evidence that the children had health problems relating to asthma. In fact, the record shows that the children were happy in the great-grandparents’ home. They were developing age appropriately, with no emotional, mental or physical problems.

In conclusion, substantial evidence supports the juvenile court’s finding that the children were likely to be adopted.

3. The Juvenile Court did Not Err By Summarily Denying Father’s Section 388 Petition

Father contends that the juvenile court erred by failing to grant him a hearing on his section 388 petition. We disagree. Father’s petition was untimely and it failed to make a prima facie showing that the requested modification was in the best interest of the children.

a. The Petition was Untimely

As explained in In re Marilyn H. (1993) 5 Cal.4th 295, a section 388 petition based upon changed circumstances may be filed after the reunification time period has ended. (In re Marilyn H., at p. 309.) Such a petition, however, must be filed prior to the section 366.26 hearing; otherwise, “there would be nothing to preclude a parent from appearing at a section 366.26 hearing and, without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond. After resolution of the issue raised, another such claim conceivably could be raised at the next section 366.26 hearing. This could result in lengthy and unnecessary delay in providing permanency for children, the very evil the Legislature intended to correct.” (In re Marilyn H., at p. 310.)

In this case, the contested section 366.26 hearing commenced on May 7, 2007. Father did not file the section 388 petition until May 23, 2007. The court denied the petition, stating that the petition was untimely because the court and the parties were in the middle of a contested section 366.26 permanency planning hearing. At that point, the focus of the proceedings is permanency for the children. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) Thus, the juvenile court did not err by denying Father’s section 388 petition as untimely.

b. Father Failed to Make a Prima Facie Showing that the Requested Modification was In the Best Interests of the Children

Reviewing for abuse of discretion, (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087), we conclude that the trial court did not abuse its discretion by concluding that Father failed to make a prima facie showing that the requested modification, returning the children to his custody, was in the best interests of the children.

Section 388, subdivision (a), allows any person to petition the juvenile court, “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made.” Subdivision (c) of section 388 provides: “If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . .”

In other words, to trigger a right to a section 388 hearing, a parent must make a prima facie showing of changed circumstances and that the proposed change of order would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

In In re Kimberly F. (1997) 56 Cal.App.4th 519, the court reiterated some of the factors, among others, to be considered when determining the best interests of a child: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of the child’s bond to both parent and caretakers; and (3) the degree to which the problem which led to the dependency may be ameliorated and the degree to which it has been. (Id. at p. 532.) An additional factor is the length of time the child has been in the dependency system. (Id. at p. 531.)

In In re Angel B. (2002) 97 Cal.App.4th 454, the court explained: “[O]ne moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.] [¶] This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated . . . . After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child . . . . A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. [Citation.]” (Id. at p. 464.)

In this case, Father filed documents showing that he had completed his domestic violence class, was employed and had obtained health insurance for the children. However, there was no evidence that he had resolved his substance abuse problem. This was a serious problem which led to the dependency petition and there was insufficient evidence that Father had addressed or ameliorated this situation. In addition, there was no evidence that Father had satisfactorily participated in or completed the marriage counseling aspect of his program. Thus, there was insufficient evidence that Father had ameliorated the significant problems of his sometimes abusive relationship with Mother, which was one of the issues which led to the dependency.

Thus, on this record, Father failed to demonstrate how removing the children from the stability of the great-grandparents’ home and returning them to his custody would promote their best interests. Father’s substance abuse and his unstable relationship with Mother affected the children. Because he had not resolved these serious issues, the juvenile court did not abuse its discretion by concluding that Father failed to make a prima facie showing that the requested change in custody would be in the children’s best interests.

4. The Juvenile Court Did Not Err By Finding that Father Did Not Establish the Section 366.26, Subdivision (c)(1)(A), Exception to the Termination of Parental Rights

Reviewing for substantial evidence (In re Derek W. (1999) 73 Cal.App.4th 823, 825), we conclude that substantial evidence supports the juvenile court’s finding that Father did not establish the section 366.26, subdivision (c)(1)(A), exception to the termination of parental rights.

At the section 366.26 hearing, the juvenile court is required to select and implement one of four possible permanent plans for the children. The permanent plan preferred by the Legislature is adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411.) If a child is likely to be adopted, the Welfare and Institutions Code directs the court to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).)

However, “[s]ection 366.26, subdivision (c)(1)(A)[,] authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds ‘a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Father had the burden to show the statutory exception applied. (In re Derek W., supra, 73 Cal.App.4th 823.)

Section 366.26, subdivision (c)(1)(A), does not specify what type of relationship Father must show to prevent a termination of parental rights. The statute requires, however, after termination of reunification services, the juvenile court must find a compelling reason for determining termination of parental rights would be detrimental to the child.

Pursuant to In re Autumn H. (1994) 27 Cal.App.4th 567, in determining whether the section 366.26, subdivision (c)(1)(A), exception applies, courts must balance on a case-by-case basis the quality of the natural parent-child relationship against the security and sense of belonging a new adoptive family would provide. The Legislature’s preference for adoption may be overcome if severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. While the In re Autumn court noted some interaction between natural parent and child will always confer some incidental benefit to the child, the significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation, such that the natural parent’s regular visits have developed a significant, positive, emotional attachment from child to parent. (In re Autumn, at p. 575.)

In In re Casey D. (1999) 70 Cal.App.4th 38, the court explained: “The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (Id. at p. 51.) In summary, “[a]lthough the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than ‘frequent and loving contact.’ ” (In re Cliffton B., supra, 81 Cal.App.4th at p. 424.)

On this record, Father has shown frequent and loving contact with the children. Father has not shown that the existence of his relationship with the children is sufficient to outweigh the children’s need for a stable and permanent home.

The evidence showed that during the 2007 time period, the children enjoyed regular, and sometimes sporadic, visits with Father. The evidence further showed that the children were sad when the visits were over. This, however, is insufficient to prevent adoption. This evidence does not show a strong and beneficial parent-child relationship that outweighs the girls’ need for stability and permanence. In fact, H. told the social worker that she was fine living with the great-grandparents forever, and that she did not want to live anywhere else. Moreover, the children referred to the great-grandparents as “mom” and “dad.”

The record also shows that H. and C. had been in the dependency system since October 2004, almost their entire lives. The parents created great instability in the lives of the children. Father failed to address his substance abuse problem and domestic violence issues. Applying a case-by-case analysis, given Father’s choices, he failed to present a compelling reason that termination of parental rights would be detrimental to the children.

DISPOSITION

The order terminating parental rights is reversed. The matter is remanded to the juvenile court to order the DCFS to provide proper notice under the ICWA. In the event that no Tribe indicates that the children are Indian children, then the juvenile court must reinstate the order terminating parental rights. If a Tribe indicates that the children are Indian, then the juvenile court is directed to proceed in compliance with ICWA. In all other respects, the orders and findings of the juvenile court are affirmed.

No costs are awarded on appeal.

We concur: KLEIN, P. J., CROSKEY, J.


Summaries of

In re H.C.

California Court of Appeals, Second District, Third Division
Mar 20, 2008
No. B200027 (Cal. Ct. App. Mar. 20, 2008)
Case details for

In re H.C.

Case Details

Full title:LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 20, 2008

Citations

No. B200027 (Cal. Ct. App. Mar. 20, 2008)