Fresno Cnty. Dep't of Soc. Servs. v. Angelica P. (In re Manuel L.)

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In re MANUEL L., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ANGELICA P., Defendant and Appellant.

F084352

California Court of Appeals, Fifth District

December 21, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County, No 20CEJ300228 Elizabeth Egan, Judge.

Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

FRANSON, J.

Angelica P. (mother) is the parent of Manuel L. Mother appeals the order terminating her parental rights to Manuel pursuant to Welfare and Institutions Code section 366.26.^[1] Mother's contention on appeal is that the juvenile court erred when it determined that the relative caregiver exception and beneficial parent-child relationship exception to termination of parental rights did not apply. She also contends that the Fresno County Department of Social Services (department) and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family members were not asked about Manuel's possible Indian ancestry. We agree with mother's latter contention and conditionally reverse and remand for further proceedings consistent with this opinion. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Initial Referral

On August 17, 2020, the department received a referral alleging mother had given birth to a baby boy, Manuel, and both she and Manuel tested positive for methamphetamine. It was learned that Manuel was in the Neonatal Intensive Care Unit (NICU) due to poor feeding, respiratory distress intrauterine drug exposure, neonatal hypermagnesemia, and prematurity. Mother told the social worker she had used methamphetamine throughout her pregnancy, last using four days prior to Manuel's birth. According to mother, she did not discover she was pregnant until six months into her pregnancy, and it was then that she began prenatal care.

Mother told the social worker that Manuel's father, Orlando N (father) had no knowledge of her drug use, and she did not believe father used drugs.^[2] Mother claimed she did not have a problem with methamphetamine, but did not want to take it any longer. She did not want Manuel taken from her and said she was open to services.

Mother planned to live with Manuel with maternal grandparents, R.P. and E.L., after she was discharged, because father was in the process of renovating mother and father's trailer home. Both mother and father denied any Native American ancestry.

The social worker made contact with the maternal grandparents at their home. They had no concerns about mother using drugs and never suspected her of doing so. Mother had told maternal grandmother that it was the epidural she received in the hospital that caused her and Manuel to test positive, which the social worker told maternal grandmother was not true. The maternal grandmother was willing to provide supervision and not allow mother to leave with Manuel while she received services from the department.

The department held a team decision-making meeting on August 18, 2020, which mother, father and the maternal grandmother attended. Mother denied ever using methamphetamine; alternately she stated she would only admit to using it once since the department was telling her she tested positive for the substance. Both mother and father argued with the social worker, prompting the social worker to obtain a protective custody warrant instead of attempting to formulate a safety plan with the parents and maternal grandmother.

The juvenile court granted the department's request for protective custody warrant on August 19, 2020. Manuel remained in the NICU.

Section 300 Petition

Also on August 19, 2020, the department filed a section 300 petition alleging Manuel was at risk of harm due to mother's use of methamphetamine while pregnant and father's failure to protect Manuel from mother's drug use. The ICWA-010 forms filed by the department indicated that both mother and father had been asked about Native American heritage on August 16, 2020, and this inquiry gave the department no reason to believe Manuel is or may be an Indian child.

The department filed an amended petition August 20, 2020, noting that Manuel was detained out of parental custody on August 19, 2020.

Detention Hearing

The report prepared in anticipation of the August 21, 2020, detention hearing stated Manuel was still in the NICU and would not be released to maternal grandmother because she did not believe mother had a substance abuse issue.

At the detention hearing, held via Zoom due to Covid, father was not present; mother appeared and gave maternal grandmother's address as her mailing address, but stated she was not living there. The juvenile court concluded there was no reasonable means to protect Manuel without removing him from parental custody and ordered his temporary placement and care be vested with the department. Mother and father were both granted reasonable supervised visits no less than twice per week.

The juvenile court asked mother about the statement in the department's report indicating mother did not have any Native American ancestry. The juvenile court asked if the statement was correct. Mother replied she did not have any Native American ancestry, "No, not at all." The court again asked, "So no Native American ancestry?" Mother said, "Correct. No." Mother did not complete an ICWA-020 form, and none was received by the court. The minute order for that date states that the information was "given verbally" by mother.

Jurisdiction and disposition was set for September 23, 2020.

Jurisdiction and Disposition Hearings

Mother hired a private attorney on September 22, 2020, and the Juvenile Law Center was relieved. The juvenile court continued the jurisdiction hearing first to October 19, 2020, and subsequently to December 14, 2020, for a contested hearing. Father was not present at any of the hearings.

In the jurisdiction and disposition report, the department noted that Manuel had been moved from the NICU to a licensed resource home on August 23, 2020. The department recommended family reunification services for both mother and father. The social worker incorrectly reported that the juvenile court had found at the earlier detention hearing that the ICWA did not apply.

In the jurisdiction/disposition report, the department reported that mother was interviewed on September 1, 2020, and insisted that she did not have a substance abuse problem, denied using drugs, and denied having told the social worker previously that she did use drugs. Father continued to also deny drug use, although his August 17, 2020, drug test was positive for methamphetamine.

The department reported that maternal grandparents had begun the resource family approval (RFA) process, and the department would assess them for possible placement upon finalization of their RFA.

Mother was unable to visit Manuel in person until after August 31, 2020, due to COVID restrictions. She was appropriate and affectionate with Manuel at her visit on September 1, 2020. Both mother and father visited Manuel on September 4, 2020, in which mother trimmed Manuel's nails and changed his diaper, and both mother and father fed and held Manuel. In the middle of September 2020, visits reverted back to virtual or by telephone due to COVID, and mother refused to participate. Mother was advised that there was a waiting list for in-person visits, and that if she did not participate in virtual visits, her referral would be closed and she would have to be re-referred.

Mother tested negative for all substances on August 24, 26, 31, and September 11, 2020, and was on a wait list for a parenting class.

The contested jurisdiction and disposition hearing was held December 14, 2020, via Zoom, and Manuel declared a dependent of the juvenile court. Father was again not present. The juvenile court found Manuel did not come within the provisions of the ICWA. Reunification services were ordered for both mother and father and both received reasonable supervised visits, a minimum of twice a week one-hour visits.

A six-month review hearing was set for May 24, 2021.

Six-Month Review

The May 24, 2021, six-month report prepared by the department recommended continued reunification services for both mother and father. By this time, Manuel had been placed in the approved resource home of a relative. Mother had made significant progress resolving the problems leading to Manuel's removal, while father had not. Mother continued to see Manuel through supervised visits; father's last visit was on September 4, 2020.

Manuel required physical therapy for torticollis from the end of October 2020 through the beginning of February 2021. Mother learned techniques from physical therapy and continued to incorporate those techniques during supervised visits with Manuel.

Both mother and father completed their parenting education class with mother receiving a certificate for perfect attendance. Mother completed a substance abuse assessment on October 20, 2020, and did not meet medical necessity for treatment. She consistently tested negative for all substances from the end of August 2020 through the end of April 2021.

Mother completed a mental health assessment on September 17, 2020, and began weekly therapy on October 22, 2020. Mother's therapist reported that mother responded well to clinical interventions and was successfully discharged from therapy by the beginning of March 2021.

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