Fresno Cnty. Dep't of Soc. Servs. v. O.H. (In re V.W.)

In re V.W. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. O.H., Defendant and Appellant.

F079596

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 16, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. Nos. 17CEJ300134-1, 17CEJ300134-2)

OPINION

APPEAL from orders of the Superior Court of Fresno County. Leanne Le Mon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Dependency jurisdiction pursuant to Welfare and Institutions Code section 300¹ was taken over minors, V.W. and W.W., due to ongoing domestic violence between father, O.H., and mother, A.B. (collectively, "the parents"), taking place in their presence. At disposition, parents were ordered to be provided with family reunification services. Because of a domestic violence incident that occurred during the reunification period after parents had completed a substantial portion of their services, their services were terminated at the 18-month review hearing and a section 366.26 hearing was set. Father subsequently filed a section 388 petition requesting his services be reinstated or the children be returned to him, which the juvenile court summarily denied. At the section 366.26 hearing, the juvenile court terminated parental rights.

Father appeals the summary denial of his section 388 petition and the order terminating parental rights. Mother is not a party to this appeal. Father contends the juvenile court erred by finding he had not made a prima facie case in his 388 petition to merit an evidentiary hearing and by failing to apply the beneficial parent-child relationship exception to terminating parental rights. Father also challenges the juvenile court's findings that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply because the Fresno County Department of Social Services (department) did not include the names of the family members he alleged were members of Native American tribes in its notice to the tribes and the Bureau of Indian Affairs (BIA). Because we find inquiry and notice under ICWA deficient, we conditionally reverse the order terminating parental rights and remand for proper inquiry and notice to be made under the ICWA. In all other respects, the orders are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2017, the department received a referral for general neglect and physical abuse on then five-year-old V.W. and then 20-month-old W.W. by mother and father.² It was reported that father had attempted to hit V.W., mother intervened, and father hit mother in the mouth causing her to suffer a "busted lip." When the social worker made contact with the family, father denied domestic violence. Father, however, stated he had been convicted of a domestic violence charge in 2016 and was attending a domestic violence program as a result, but mother herself had caused the injuries that led to that conviction. A criminal protective order allowing peaceful contact was in place.

The social worker did not observe any visible marks or bruises on V.W. V.W. told the social worker that father hits mother and calls mother a "Fat Bitch," "Whore," "Slut," and "Asshole"; and tells mother she is no good without father. V.W. stated her parents had a bad relationship and things were not well in her home. V.W. worries about her parents fighting and she wants to help mother fight father. V.W. stated she was afraid of father and wished she could live with mother and W.W. without father.

An "Imminent Risk Team Decision Making Meeting" was held on April 27, 2017. Father was invited to the meeting but did not attend or participate. At the meeting, mother acknowledged there was ongoing domestic violence that took place in the presence of the children. Mother stated she wanted to "work things out" with father and the domestic violence was not that bad. Mother had left father on previous occasions and gone to the Marjaree Mason Center, a shelter for domestic violence victims which provides support services, or to her parents' house, only to return to him. At the meeting, mother agreed to return to Marjaree Mason Center. The next day, the social worker wasinformed mother had not returned to the Marjaree Mason Center as promised, and the department obtained a protective custody warrant on behalf of the children. The children were removed from mother's residence.

On May 3, 2017, the department filed a dependency petition on behalf of the children, alleging they came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) (failure to protect) and (c) (serious emotional damage) because the domestic violence between mother and father caused the children to suffer or be at substantial risk of suffering serious physical harm or illness and serious emotional damage. The children were ordered detained from the parents on May 5, 2017. At the detention hearing, the court ordered the parents to have supervised visitation with the children.

When V.W. arrived at her care providers' home, she asked them if they "hit in this house" and seemed confused when they told her they did not. V.W. also referred to her mother's friends as "whores" or "hoes." The care providers reported that when V.W. thinks she is not being supervised, she has spit in W.W.'s face and has kicked him in his genitals. The care provider observed that V.W. gets "really sad really fast." When V.W. first came to the home, she pretended to be a cat and stated, "humans were useless." V.W. also had an issue with bed wetting. V.W.'s doctor informed the care providers that the bed wetting was likely due to trauma. The care provider also reported that V.W. appeared to be "parentified" in her relationship with W.W. The care provider reported that W.W. was very physical, had one-hour long fits, and ate until he threw up.

On June 13, 2017, the social worker visited V.W. and W.W. at their care providers' home. V.W. told the social worker that father said "bullshit" "all the time" and her parents were "always fighting." V.W. told the social worker that one time father hit the wall and broke something and they called the police and left. V.W. said she and mother were scared and trembling.

At the contested jurisdiction/disposition hearing held on August 29, 2017, father testified on his behalf and denied the allegations in the petition. Father testified that on the April 25 incident, he stood up like he was about to spank V.W. Mother was breastfeeding W.W. and also stood up because she thought father was going to spank V.W. and when she did so, W.W.'s head hit mother and caused her injury, not father. Father testified he had completed an anger management program as a result of the previous domestic violence charge.

The court found the allegations in the petition true and adjudged the children dependents of the court. The court noted it did not find father's testimony regarding how mother's injury happened credible. The court ordered the parents to have supervised visits with the department having discretion to increase visitation. The court ordered the parents to be provided reunification services including parenting classes, a domestic violence evaluation and recommended treatment, and a mental health evaluation and recommended treatment.

V.W. completed a mental health assessment pursuant to her case plan on July 24, 2017, and was recommended weekly therapy sessions. W.W. completed a mental health assessment pursuant to his case plan on August 3, 2017, and was recommended play therapy once a week.

Parents began participating in their services. Mother completed her parenting class on September 7, 2017. Mother completed a domestic violence index and was recommended to participate in the "Phoenix Program," and Child Abuse Intervention Program (CAIP) offered by the Marjaree Mason Center to address domestic violence issues. Mother participated in weekly therapy.

Father completed his parenting class on October 17, 2017. Father completed a domestic violence index and was recommended to participate in the CAIP and anger management classes. The CAIP class was a 52-week program to address domestic violence issues. Father had completed his anger management class ordered by criminalcourt as part of his domestic violence charge on August 3, 2017, and was permitted to use the class to count toward the reunification service requirement. Father participated in biweekly therapy.

On November 14, 2017, mother and father's shared home was assessed with no concerns noted. On November 29, 2017, the parents progressed to unsupervised visits. As of the six-month status review report dated February 12, 2018, there had been no concerns noted at the visits and a meeting was scheduled to discuss overnight visits. The department opined the parents had made significant progress towards resolving the issues that led to the children's removal and recommended the court continue reunification services. At the six-month status review hearing on February 13, 2018, the juvenile court ordered reunification services to be continued as to both parents.

Mother completed the Phoenix Program on March 2, 2018.

On April 25, 2018, mother went to the department office, appearing emotional, distraught, and scared. Mother told the social worker there had been a domestic violence incident between her and father. Mother had taken an audio recording of the incident. The audio was as...