Los Angeles Cnty. Dep't of Children & Family Servs. v. Larry M. (In re Kristopher D.)

In re KRISTOPHER D., a Person Coming Under the Juvenile Court Law.LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

v.LARRY M., Defendant and Appellant.

B236921

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Filed: August 7, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK73674)

APPEAL from an order of the Superior Court of Los Angeles County. Sherri Sobel, Juvenile Court Referee. Reversed and remanded with directions.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent. Catherine C. Czar, under appointment by the Court of Appeal, for Minor.

Appellant Larry M. appeals from the order terminating his parental rights as to the child Kristopher D.¹ He contends that the juvenile court acted without subject matter jurisdiction because there was no sustained Welfare and Institutions Code section 300² petition on file against him. He further contends that a number of procedural omissions invalidate the termination order. Finally, he claims that substantial evidence did not support the order.

Though we must conditionally reverse the order terminating parental rights because of the juvenile court's failure to provide proper notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), we reject appellant's challenges to the order. The juvenile court properly assumed subject matter jurisdiction over Kristopher with the filing of a section 300 petition against his legal guardian, which it later amended to include a count against appellant pursuant to section 300, subdivision (g). As a biological rather than a presumed father, appellant was not entitled to the procedural safeguards he argues were lacking. In any event, appellant forfeited his right to challenge any procedural deficiencies and any omission in the advisements appellant received was harmless error. Finally, the juvenile court made the appropriate findings for and substantial evidence supported the termination of appellant's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

First Petition.

In 2005, the probate court appointed maternal grandmother Mary B. (guardian) as the legal guardian for Kristopher, born in 2002 with fetal alcohol syndrome. He was developmentally delayed, most likely as a result of prenatal alcohol exposure. By 2007, Kristopher's younger brother Kenneth also resided with the guardian at the home of hercompanion, Rudolph S. The children's mother, Karen D. (mother), had a history of alcohol and drug abuse, was developmentally delayed and had been diagnosed as bi-polar. Between 2002 and 2008, the Department received 23 referrals about the family.

On June 23, 2008, the Department received a referral alleging domestic violence between Rudolph and the guardian which took place in front of Kristopher. The Department also learned that during a trip mother was allowed to be alone in a hotel room with Kristopher after she said she was having thoughts of wanting to have sex with him. It appeared that mother was living with the guardian. Mother was attending a mental health program, but admitted she continued to have thoughts about molesting Kristopher and abusing drugs and alcohol. She added that from age 18 to the present she had a consensual sexual relationship with Rudolph.

The Department investigated the prior referrals and, upon reviewing the guardian's Live Scan results, learned that she had numerous arrests for child endangerment and a conviction for incest. Although the guardian initially denied the arrests and conviction, she later stated that her mother had raised her four children. The conviction resulted from an incident where her alcoholic husband forced her at gunpoint to orally copulate her 14-year-old son.

Determining that the safety of the children was at risk, the Department detained Kristopher and Kenneth. The guardian identified appellant as Kristopher's father, but stated she thought he was deceased, and did not identify any other relatives for placement.³ The Department's initial efforts to contact appellant were unsuccessful.

The Department filed its original section 300 petition solely against the guardian on July 16, 2008 (July 2008 petition), which alleged counts under section 300, subdivisions (b) and (d) on the basis of the guardian's sexual abuse of the children's uncle, history of substance abuse and creation of a detrimental environment by allowing mother access to the children even though she had thoughts of molesting Kristopher andhad driven him while under the influence of alcohol. At the detention hearing, the guardian indicated that the children's maternal grandfather might have some unknown Cherokee history. Mother completed an ICWA-020 form and indicated that she was or may be a member of the Cherokee tribe. Nonetheless, concluding there was no evidence that any family member was an enrolled member of a tribe, the juvenile court deemed the information to be "family lore" and declined to order that notice be provided under the ICWA. All subsequent reports adopted the juvenile court's finding that "no ICWA exists in this case."

The juvenile court found a prima facie case for detaining the children and ordered them detained in foster care. It further ordered that a family friend who appeared in court, Sandra L., be assessed for placement.

Jurisdiction and Disposition.

The Department assessed Sandra's home to be suitable for placement and the children were placed with her on July 25, 2008.

The Department's August 6, 2008 jurisdiction/disposition report indicated that appellant was identified as Kristopher's father on his birth certificate; mother also verbally identified him as Kristopher's father. The report outlined the family's prior referrals and the extensive criminal histories of appellant, mother and the guardian. At the time of the initial report, appellant's whereabouts remained unknown. Attached to the report was a first amended section 300 petition which added allegations against appellant under subdivision (b) concerning his criminal history and under subdivision (g) for his failure to provide support for Kristopher. The Department served notice of the hearing on the petition and the first amended petition.

In a last-minute information submitted on August 6, 2008, the Department reported it had located appellant. He appeared at the hearing the same day. Though the juvenile court observed that appellant was not a party to the initial petition, it did not discuss or make any rulings related to the proposed first amended petition. It set the matter for a contested jurisdictional hearing.

In September 2008, the Department filed a section 388 petition seeking to rescind the legal guardianship. It thereafter filed a motion pursuant to section 728 to terminate the legal guardianship. Appellant appeared at the September 16, 2008 hearing on those matters. He indicated that a DNA test had confirmed his paternity of Kristopher and the juvenile court declared appellant to be Kristopher's biological father. He requested reunification services and the juvenile court permitted him monitored visitation.

With respect to the termination of the legal guardianship, the juvenile court made findings that it was in the children's best interests to set aside the guardianship and stated: "I set aside the legal guardianship of these children. I have no underlying petition. Having read the reports before me, I will amend to proof and file the underlying. There is an underlying petition, and I will dismiss that petition in its entirety, however, amend according to proof under a (g); that there's no appropriate parent or guardian ready, willing, and able to have these children at this time. So that (g) is sustained by a preponderance of the evidence." The juvenile court continued: "The (g) petition that has been sustained can be fought by the parents in two ways: One, that they are in fact ready, willing, and able to have their children; or, two, simply the dispositional portion, that they would like their children returned to them." On the face of the July 2008 petition, the clerk noted "dismissed" on September 16, 2008, but then crossed that out and wrote "re-instated" on the same date. The petition was not otherwise physically amended to reflect that only the count under section 300, subdivision (g) had been sustained.

At the hearing, the juvenile court then proceeded to set the matter for disposition. It directed the Department "to interview the parents and determine whether any other petitions will be filed. If not, and we're only working off the (g), then the Department needs to look at the parents as to their suitability."

On October 1, 2008, the Department filed another section 300 petition, containing allegations under subdivisions (b), (d) and (j) against mother, and under subdivisions (b) and (g) against appellant on the ground he had "failed to provide the child with the necessities of life including food, clothing, shelter and medical treatment." It also filed a detention and an addendum report that summarized its investigation of the family's priorreferrals and criminal history. At the October 1, 2008 hearing, the juvenile court indicated that the Department had the right to file the petition, deemed it filed, received appellants' and Mother's denials and joined all issues for the upcoming dispositional hearing. At that time, appellant signed a statement indicating that he had no information regarding any...