In re A.D., D054597 (Cal. App. 11/4/2009)

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In re A. D. et al., Persons Coming Under the Juvenile Court Law SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL D. et al., Defendants and Appellants.

D054597

Court of Appeals of California, Fourth Appellate District, Division One

November 4, 2009

Appeal from orders of the Superior Court of San Diego County, Super. Ct. No. J516411A-D, Yvonne E. Campos, Judge. Reversed with directions.

Not to be Published in Official Reports

McCONNELL, P. J.

Michael D. and Cynthia R. (together, the parents) appeal juvenile court orders terminating parental rights to their minor children A. D., Joseph D., E. D. and Henry D. (collectively, the minors) under Welfare and Institutions Code section 366.26.¹ The parents contend: (1) substantial evidence does not support the court's finding of "serious damage" under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA); (2) the court erred by finding that terminating parental rights would not substantially interfere with the minors' connection to their tribal community; (3) the evidence was insufficient to support the court's finding there was no beneficial parent-child relationship between Cynthia and the minors; (4) the court should have selected guardianship as the minors' permanent plans because the grandparents' only reason for adopting was financial; and (5) defective ICWA notice to the minors' tribe requires reversal.

Although we agree ICWA notice was deficient, we conclude none of the parents' other contentions have merit. Accordingly, we reverse the orders terminating parental rights for the limited purpose of ensuring compliance with ICWA notice requirements.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2006 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging Cynthia's mental condition, including bipolar disorder,² prevented her from providing adequate care for the minors, and Michael was unable to protect them. Specifically, the petitions alleged Cynthia was agitated, nervous and paranoid, she believed her kitchen appliances were possessed by spirits and ghosts, and her home was filthy and unsanitary. The court detained the minors in out-of-home care and noted ICWA might apply.

At a jurisdiction hearing on October 24, the court sustained the allegations of the petitions and set a disposition hearing for November 14. Because both sets of grandparents lived out of state, the court ordered an expedited assessment of their homes under the Interstate Compact on the Placement of Children (ICPC).

The parents have a history of domestic violence. Michael, who is an enrolled member of the Standing Rock Sioux Tribe (the tribe), was incarcerated in Missouri, awaiting extradition to New Mexico. Cynthia was in a psychiatric facility. Agency filed a letter from the tribe indicating the minors were eligible for enrollment. The social worker reported she had spoken to Beverly Ironshield, the tribe's ICWA representative, and informed her that the juvenile court had jurisdiction of the minors. The social worker was unable to determine whether the tribe would intervene on behalf of the minors. Ironshield said the family had not asked the tribe to intervene. By January 2007, the tribe still had not decided whether to intervene.

At a contested disposition hearing in February 2007 the court received into evidence the declaration of Indian expert Phillip Powers, dated December 12, 2006. Powers stated "[a]ctive [e]fforts" had been made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family, and returning the minors to parental custody "would result in great risk and danger of substantial physical and emotional harm" to the minors. After finding active efforts to prevent the breakup of the Indian family had been unsuccessful, the court declared the minors dependents, removed them from parental custody, placed them in out-of-home care and ordered the parents to participate in reunification services.

During the next six months Cynthia was homeless and made no effort to contact the Agency. Her mental illness remained untreated. She had telephone contact with the minors but was not otherwise participating in services. Michael lived in New Mexico and was on probation. He had two supervised visits with the minors, who had been placed with the maternal grandparents in Missouri. At a six-month review hearing in June 2007 the court continued the minors as dependents, continued Michael's services and terminated Cynthia's services.

According to a 12-month review report, the minors were now enrolled members of the tribe. Michael was again incarcerated in New Mexico. He had not followed up on drug treatment or individual therapy before his incarceration, and had attended only two parenting classes. Cynthia moved from San Diego to Missouri. She reported being employed and going to counseling. However, she continued to refuse medication for her bipolar disorder. The minors' supervised visits with Cynthia were going well. Although A.D. enjoyed visiting Cynthia, she did not want more or longer visits. Michael went to Missouri for a week, but did not visit the minors. The social worker believed it would be detrimental to return the minors to parental custody, and recommended the court set a section 366.26 selection and implementation hearing.

On November 28, 2007, Powell filed another Indian expert declaration. He stated active efforts had been made to prevent the breakup of the Indian family, and agreed with Agency's recommendation to have the court select and implement a permanent plan for the minors. He again found returning the minors to either parent's custody would result in great risk and danger of substantial physical and emotional harm to the minors.

According to various addendum reports, Michael was again incarcerated for failing to comply with conditions of probation and testing positive for drugs. After his release, he did not contact the social worker, and he missed an opportunity to visit the minors. Aurelia was in therapy to process her feelings about Cynthia and their relationship. The therapist reported Aurelia was just beginning to accept her mother's mental illness and she was enjoying visits with her. The therapist did not recommend reunification because Cynthia's mental illness was untreated, and Aurelia was at risk of assuming a parental role. The therapist would consider unsupervised visits only if Cynthia had an extended period of compliance with treatment.

During a psychological evaluation Cynthia did not disclose her history of mental health hospitalizations. She told the evaluator the minors were removed from her custody because she did not send them to school. The evaluator believed Cynthia had no psychological problems and recommended the minors be returned to her care.

At a contested 12-month hearing the court terminated Michael's services and set a hearing under section 366.26 to select and implement permanent plans for the minors.

In an assessment report the social worker recommended adoption as the minors' permanent plans. The minors were doing well in the care of their maternal grandparents, and they also had regular contact, including overnight visits, with their paternal grandparents. The two sets of grandparents interacted well. The maternal grandparents were willing to adopt the minors, and the social worker assessed the minors as both generally and specifically adoptable.

Cynthia was visiting the minors several times a week in the maternal grandparents' home. She behaved appropriately, but the visits remained supervised. Although Cynthia's mental health had stabilized since the beginning of the case, she had a history of acute mental health breakdowns, caused by her refusal to take medication, requiring hospitalizations. It was unclear how long Cynthia would be able to maintain her stability this time. Michael had a pattern of violating probation, resulting in repeated incarceration. Neither parent was able to care for the minors. There was no indication Cynthia's mental illness was being treated appropriately, and the minors needed stability, which they had with the maternal grandparents. The social worker noted the minors would continue to learn about and experience their Indian heritage through contact with the paternal relatives.

After the various permanent plan options were explained to the maternal grandparents they decided to pursue adoption, stating they wanted to do what was best for the minors. The social worker continued to recommend adoption as the minors' permanent plans because they should not have to wait for Cynthia to show she could maintain her stability or for Michael to show he could remain out of jail.

At a selection and implementation hearing that began on October 20, 2008, Cynthia testified she visited the minors two to five times a week, and helped the maternal grandparents with child care and chores. Cynthia said she went to therapy once a week or once every two weeks and was under the care of a psychiatrist, who did not prescribe medication for her.

Social worker Colleen Murray testified Agency sent notice of all proceedings to the tribe, but the tribe had not contacted her and had not sought to intervene. According to the maternal grandparents, Cynthia was having supervised visits with the minors at least twice a week and she attended their school functions and other events. Murray had not received any reports from Cynthia's treatment providers during the past six months.

Murray further testified the maternal grandparents never expressed any hesitation about adopting. After learning about the differences between adoption and guardianship, including the financial ramifications, they reiterated their willingness to adopt.

The maternal grandmother testified Cynthia visited the minors two or three times a week for three or four hours...