Opinion
B322289
06-21-2023
In re LONDYN B. et al., Persons Coming Under the Juvenile Court Law. v. PRECIOUS B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 19LJJP00636 Steven E. Ipson, Juvenile Court Referee, and Susan Ser, Judge. Conditionally affirmed in part, reversed in part, and remanded with directions.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Precious B. (Mother) appeals from the juvenile court's orders made at the May 19, 2022 selection and implementation hearing (Welf. &Inst. Code, § 366.26) appointing a legal guardian for 12-year-old Londyn B. and 11-year-old Marcel B., granting Mother monitored visitation at the discretion of the guardian, and terminating dependency jurisdiction. Mother contends the juvenile court abused its discretion in failing to specify the frequency and duration of Mother's visits with the children. Mother also contends the Los Angeles County Department of Children and Family Services (Department) and the court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law.
Further undesignated statutory references are to the Welfare and Institutions Code.
The Department concedes and we agree the juvenile court erred in failing to specify the frequency and duration of Mother's visits. In addition, the Department "does not oppose" reversal of the order terminating jurisdiction and the visitation orders for the court and the Department to satisfy their duty of inquiry under ICWA and California law. We reverse the juvenile court's visitation orders; conditionally affirm the court's findings and orders appointing a legal guardian and terminating jurisdiction; and remand with directions for the court to make new visitation orders and for the court and the Department to comply with the inquiry and notice provisions of ICWA and California law.
FACTUAL AND PROCEDURAL BACKGROUND
On August 30, 2019 the Department filed a petition under section 300, subdivisions (a), (b)(1), and (j), on behalf of then-10-year-old Londyn B., then-eight-year-old Marcel B., and their then-five-year-old half brother Samson A., alleging Mother physically abused Londyn on two occasions; Mother had a history of engaging in violent behavior with other people in front of the children; and Mother had a history of abuse of marijuana and other substances, rendering her incapable of providing regular care for the children and placing them at risk of serious physical harm. The children were detained and placed in the home of Mother's second cousin Deon O. At the September 3, 2019 detention hearing, the juvenile court found Marqui B. (Father) was the presumed father of Londyn and Marcel. On January 13, 2020 the Department reported that Mother had moved to Las Vegas, Nevada.
Juvenile court referee Steven E. Ipson presided over the detention, jurisdiction, and disposition hearings.
On December 9, 2019 the Department filed a first amended petition adding allegations under section 300, subdivisions (a), (b), (e), and (j), that Samson's father, Darren A., had dangled Samson (three years old at the time) over the outside banister of the second story of the apartment building where Mother and the children lived, threatening to drop him; Mother used inappropriate physical discipline on Londyn; and Mother and Darren had a history of engaging in domestic violence in front of the three children, including an incident in which Darren struck Mother on the mouth causing a laceration and swelling. The parents' actions endangered the children's physical and emotional health, safety, and well-being and placed them at risk of physical and emotional harm.
At the jurisdiction hearings held on February 11 and July 17, 2020, the juvenile court sustained the amended allegations under section 300, subdivisions (a), (b)(1), and (j), that Mother administered inappropriate physical discipline on Londyn (including grabbing Londyn and sitting on her while striking her on the face and body); and Mother and Darren had a history of engaging in domestic violence in front of the children. The court struck the remaining allegations and counts (including as to Mother's substance abuse).
The juvenile court dismissed the allegation under section 300, subdivision (a), that Darren dangled Samson over the banister. The court dismissed the allegation as to Samson because Samson gave conflicting statements that Darren dangled him over the banister, or Darren tried to drop him from a staircase.
At the disposition hearing held on October 9, 2020, the juvenile court declared the children dependents of the court, removed them from Mother, and granted reunification services to Mother. Londyn and Marcel were placed with Deon, and Samson was placed with Darren. The court ordered Mother to submit to on-demand, weekly drug testing upon the Department's suspicion Mother is under the influence, anger management, mental health counseling, parenting classes, and individual counseling. The court also ordered Mother to comply with the recommendations of a court-appointed expert, who in May 2020 conducted a psychological evaluation pursuant to Evidence Code section 730 and determined Mother may be suffering from bipolar disorder and require psychotropic medication. The court granted Mother seven hours of monitored visitation and two hours of unmonitored visitation per week, with the Department having discretion to liberalize visitation.
Father, who was a noncustodial parent, did not seek custody of the children or request family reunification services.
Mother testified at the disposition hearing she was living in Las Vegas and driving once a week to visit the children, who were living with Deon in the Lancaster area.
At the July 1, 2021 contested six-month review hearing, the juvenile court found Mother was not in substantial compliance with her case plan, terminated her family reunification services with respect to Londyn and Marcel, and set a selection and implementation hearing (§ 366.26). The Department presented evidence Mother had moved to Georgia to be closer to Samson, who was then living in South Carolina, and Mother had visited with Londyn and Marcel only three times since February or March 2021. Mother refused to drug test during her visits to California in February and March 2021, and she continued to use marijuana in Georgia. Mother testified she attended eight parenting classes in Nevada, took anger management classes in Georgia, and completed an intake questionnaire for a doctor in Georgia. However, Mother did not present evidence she received individual counseling or addressed her possible bipolar disorder. Mother claimed she visited Londyn and Marcel monthly.
Judge Ser provided over the six-month review hearing and subsequent hearings and made the orders that are the subject of this appeal.
The juvenile court granted Darren sole physical and legal custody of Samson and terminated jurisdiction as to Samson. Mother does not appeal from any orders relating to Samson.
Mother also had "ongoing virtual visits" with the children, although the Department did not specify the frequency or duration of the virtual visits.
Mother tested positive for marijuana in California on July 8 and November 20, 2020, and on January 14, 2021.
On November 3, 2021 the Department filed a section 388 petition requesting Mother have only monitored visits because she had kept Londyn and Marcel for an unauthorized, unmonitored overnight visit without informing Deon, and she argued with Deon in front of the children. The juvenile court granted the petition and limited Mother to monitored visits.
On April 5, 2022 Mother filed a section 388 petition requesting the juvenile court return Londyn and Marcel to her custody or reinstate reunification services. Mother's stated she completed her entire court-ordered case plan and addressed the case issues, but she did not attach any evidence. On May 5, 2022 the court summarily denied Mother's petition based on lack of evidence. On May 19 Mother filed a second section 388 petition seeking the same relief. This time, Mother attached a letter from the behavioral health department in Fulton County, Georgia, stating Mother had made significant progress in treatment for bipolar II, anxiety, posttraumatic stress disorder, and depression. The letter recommended Mother reunite with the children. Mother also submitted evidence she tested negative for drugs while in Georgia on March 23, April 27, and May 12, 2022.
On April 22, 2022 Mother filed a notification of change of mailing address reflecting she had moved to Houston, Texas.
At the May 19, 2022 selection and implementation hearing, the court denied Mother's section 388 petition without setting an evidentiary hearing, finding Mother made progress in addressing case issues, but there was insufficient evidence of material changed circumstances affecting the children's welfare. With respect to a permanent plan for Londyn and Marcel, the Department requested the court grant a legal guardianship with Deon as the guardian, arguing that the children had resided with Deon for three years, he had been meeting their material, social, and educational needs, and placement with him allowed them to visit frequently with the maternal grandmother, with whom they had principally lived prior to their removal and was the only person besides Deon with whom the children wished to live.Minors' counsel joined in the request. Mother's attorney objected to the Department's recommendation to terminate jurisdiction with a legal guardianship but presented no evidence or argument at the hearing. The court ordered as to visitation: "Mother's and Father's visitation to be monitored. Legal guardian has discretion as to time, place, and manner of visits. Mother and Father may also have telephone and virtual visits." The court terminated jurisdiction.
The January 19, 2022 permanency planning report stated Londyn and Marcel told the social worker they enjoyed living with Deon and preferred to stay with him over any other option. Londyn reported she was happy that she was able to spend time with Mother, Father, and maternal grandmother whenever she wanted.
Mother's notice of appeal states she is appealing from both the section 366.26 hearing orders and the May 19, 2022 order denying her section 388 petition. However, Mother does not challenge the denial of the section 388 petition in her appellate brief and has therefore forfeited or abandoned the issue. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal "deemed waived"]; Swain v. LaserAway Medical Group, Inc. (2020) 57 Cal.App.5th 59, 72 ["'"'Issues not raised in an appellant's brief are [forfeited] or abandoned.'"'"].)
DISCUSSION
A. The Juvenile Court Erred in Failing To Specify the Frequency and Duration of Mother's Visits in the Visitation Orders
"When, as here, the juvenile court orders a legal guardianship at the permanency planning hearing, it must 'make an order for visitation with the parents . . . unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.' (§ 366.26, subd. (c)(4)(C).)" (In re Ethan J. (2015) 236 Cal.App.4th 654, 661; accord, In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1313; In re M.R. (2005) 132 Cal.App.4th 269, 274 ["the trial court was required to make a visitation order unless it found that visitation was not in the children's best interest"].) "[T]he juvenile court cannot delegate the decision whether visitation will occur to any third party, including the child, the social services agency, or the guardian." (In re Korbin Z. (2016) 3 Cal.App.5th 511, 516; accord, In re T.H. (2010) 190 Cal.App.4th 1119, 1123 ["The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties."].) "The time, place, and manner of visitation may be left to the legal guardians, but the guardians shall not have discretion to decide whether visitation actually occurs." (In re Grace C. (2010) 190 Cal.App.4th 1470, 1478; accord, In re Rebecca S., at p. 1314 ["leaving the frequency and duration of visits within the legal guardian's discretion allows the guardian to decide whether visitation actually will occur"]; see In re S.H. (2003) 111 Cal.App.4th 310, 317 ["the power to decide whether any visitation occurs belongs to the court alone."].) "'We review applicable legal principles de novo, but apply a deferential standard of review to the court's exercise of discretion and resolution of disputed facts.'" (In re Rebecca S., at p. 1314.)
Mother contends the juvenile court abused its discretion in ordering that Deon would have "discretion as to the time, place, and manner of [Mother's] visits" without also specifying the frequency and duration of the visits because these orders did not ensure a minimum level of visitation would occur. The Department concedes and we agree it was legal error for the visitation orders not to reflect the frequency and duration of Mother's visits. (In re Rebecca S., supra, 181 Cal.App.4th at p. 1315; In re M.R., supra, 132 Cal.App.4th at p. 274.) However, apart from Mother's contention the court failed to comply with ICWA, discussed below, Mother does not argue there were any defects in the juvenile court's orders at the selection and implementation hearing other than as to visitation. Accordingly, although we conditionally affirm the order granting a legal guardianship and terminating jurisdiction, we reverse the visitation orders and remand for the juvenile court to issue new visitation orders specifying the frequency and duration of visits between Mother and the children. (See In re Rebecca S., at p. 1315 ["portion of the [section 366.26 order] regarding visitation is reversed, and the matter is remanded to the juvenile court with directions to specify the frequency and duration of [parent's] visits"].)
B. The Juvenile Court and the Department Failed To Comply with ICWA and Related California Law
1. ICWA inquiry and notice requirements
ICWA and California law require in dependency proceedings that where the court knows or has reason to know an Indian child is involved, notice must be given to the relevant tribes. (25 U.S.C. § 1912(a); Welf. &Inst. Code, § 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re Rylei S. (2022) 81 Cal.App.5th 309, 317; Cal. Rules of Court, rule 5.481(c)(1).) The notice requirement is at the heart of ICWA because it "enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding." (In re Isaiah W., at p. 5; accord, In re Antonio R. (2022) 76 Cal.App.5th 421, 428 (Antonio R.).)
The juvenile court and the Department "have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W., supra, 1 Cal.5th at p. 9; In re J.C. (2022) 77 Cal.App.5th 70, 77 (J.C.).) The duty to inquire begins with initial contact (§ 224.2, subd. (a)) and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child. (In re Rylei S., supra, 81 Cal.App.5th at p. 316; J.C., at p. 77; In re H.V. (2022) 75 Cal.App.5th 433, 437.)
Section 224.2, subdivision (b), imposes on the Department a duty to inquire whether a child in the Department's temporary custody is an Indian child, which "[i]nquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child ...." (See Cal. Rules of Court, rule 5.481(a)(1) [the Department "must ask . . . extended family members . . . whether the child is or may be an Indian child"].) "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (Antonio R., supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018) 20 Cal.App.5th 701, 706.) And as we have repeatedly held, "Where the Department fails to discharge its initial duty of inquiry under ICWA and related California law, and the juvenile court finds ICWA does not apply notwithstanding the lack of an adequate inquiry, the error is in most circumstances . . . prejudicial and reversible." (Antonio R., at p. 435; accord, J.C., supra, 77 Cal.App.5th at pp. 80-81.)
2. The juvenile court failed to ensure the Department satisfied its duty of inquiry
Mother contends reversal is required because the juvenile court found that ICWA did not apply based solely on Mother's and Father's denials of Indian ancestry, and neither the court nor the Department inquired of any extended family members whether Londyn and Marcel had Indian ancestry even though maternal relatives were known to the Department. The Department concedes the record does not show there was any inquiry of extended family members. We agree the juvenile court and the Department failed to satisfy their duty of inquiry under section 224.2, subdivision (b).
On September 3, 2019 Mother and Father each filed a parental notification of Indian status form (Judicial Council form ICWA-020), on which they checked the box stating, "I have no Indian ancestry as far as I know." Mother previously denied any Indian ancestry during an August 16 interview with a social worker. At the September 3 detention hearing, the juvenile court, without making any further inquiry, found ICWA did not apply to the children. Mother, Father, maternal grandmother (Crystal N.), maternal aunt, and maternal uncle (Prince B.) were present at the detention hearing. Over the course of the dependency proceeding, the Department communicated with Crystal, Prince, Mother's foster sister (Myunique F.), and Deon, who was Mother's second cousin and was raised in the same household as Mother. The Department was also in contact with Father, but it did not seek contact information for extended paternal relatives. There is no indication social workers ever inquired of any of these relatives whether the family had Indian ancestry.
The reporters' transcript reflects a "paternal uncle" and "paternal grandmother" were also present at the detention hearing, but it is unclear whether these were relatives of Father or Darren (Samson's father), who was also present.
Notwithstanding Mother's and Father's denial of Indian ancestry, section 224.2, subdivision (b), obligated the Department to inquire of extended family members as to Londyn and Marcel's possible Indian ancestry. (See J.C., supra, 77 Cal.App.5th at p. 77; Antonio R., supra, 76 Cal.App.5th at p. 431.) Information relevant to the children's possible Indian ancestry was readily obtainable from maternal relatives Crystal, Prince, and Deon. And the Department made no effort to obtain the contact information of paternal relatives. The juvenile court therefore erred in finding ICWA did not apply to the proceedings and in failing to ensure the Department complied with its duty of inquiry. (J.C., at p. 74; Antonio R., at p. 432.)
DISPOSITION
The juvenile court's findings and orders granting a legal guardianship for Londyn and Marcel and terminating jurisdiction are conditionally affirmed. The visitation orders are reversed, and we remand for the juvenile court to issue new visitation orders for Londyn and Marcel that specify the frequency and duration of Mother's visits, for full compliance with the inquiry and notice provisions of ICWA, and for further proceedings consistent with this opinion.
WE CONCUR: PERLUSS, P. J., SEGAL, J.