In re Katie T.

In re Katie T. et al., Persons Coming Under the Juvenile Court Law.

MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ILENE K., Defendant and Appellant.

A159220, A160139

California Court of Appeals, First District, Fourth Division

June 18, 2021

NOT TO BE PUBLISHED

Mendocino County Super. Ct. Nos. SCUK JVSQ 19 17729-02; SCUK JVSQ 19 17728-02; SCUK JVSQ 19 17074-03; SCUK JVSQ 19 17075-03; SCUK JVSQ 19 17076-03

STREETER, J.

In these consolidated appeals, appellant Ilene K. (Mother) asks us to resolve a placement issue for her youngest child, Katie T., under the Indian Child Welfare Act of 1978 (25 U.S.C § 1901 et seq.) (ICWA), as well as to review the sufficiency of the evidence to support the disposition orders removing all five of her children from her custody. Katie T a member through her father of a recognized Native American tribe, was placed with a tribally approved extended family member, her paternal aunt, in San Diego. Mother contends this placement was not in “reasonable proximity” to Katie T.'s home, as required by ICWA, and seeks Katie T.'s return, if not home, then at least to Mendocino County. (25 U.S.C. § 1915(b).) Mother's stance pits her against Katie T.'s tribe, which wants her to stay in San Diego. We shall affirm the decision to keep her in San Diego, finding it was not contrary to ICWA and not an abuse of discretion.

Mother further challenges the sufficiency of the evidence to support the disposition orders removing all five children from her care. We conclude Mother's current inability to provide adequate and stable housing for her children, combined with her lifelong mental health issues, often left untreated, and her history of substance abuse, provided substantial evidence to support the removal orders.

I. BACKGROUND

A. The Detention

In July 2019, Mother and her partner, Antonio T., moved with Mother's five children (ranging in age from two to nine) to Covelo from Willits. The three oldest children are boys; the two youngest are girls. The family was staying temporarily with Mother's sister, Kate K., and her mother, Susan K., in a house owned by Kate K., until they could find their own housing in Covelo. Tragically, Antonio T. died as soon as they moved in with Kate K. He was the biological and presumed father of Katie T., age two, and the presumed father of J.L., a girl age three.

Kate K.'s house was apparently connected through corridors with one or more mobile homes. The compound had a detached carport. After Antonio T.'s death, Mother moved into a tent in the carport so she could grieve the loss of her partner without, she thought, adversely influencing her children.

Less than two months after Antonio T.'s death, on September 9, 2019, Mother's five children were detained by two social workers from the Mendocino County Health and Human Services Agency (Agency) and a social worker from the Round Valley Indian Tribes, in response to a referral for general neglect, severe neglect, and physical abuse. The children themselves were dirty, as was the home where they were staying, and it presented dangers to the children. The detention report described a heavily cluttered house in unsanitary and ill repaired condition. The detention report also identified potential dangers to the children on the premises, including sharp tools, a closed pocketknife within their reach, and a pile of wood, boards with nails sticking out and metal roofing outside. A caged possum and a caged crow reportedly lived in the house with the family, which violated tribal customs. Meanwhile, Mother slept in a tent in the carport, away from the house.

In addition to the conditions in the house, Mother tested presumptively positive for methamphetamine, and she admitted she had used methamphetamine at a party a day or two before. This was a special concern because she and Antonio T. had just received the children back into their custody less than six months earlier from a 2017 dependency case that involved methamphetamine use by both of them. Katie T. had been just one month old when she was detained in the 2017 dependency before being returned to Mother and Antonio T. in March 2019. Her first placement, along with the other children, had been with Kate K., who surrendered her back to the Agency within 24 hours because she could not care for a “colicky infant” along with the other four children. Katie T. was returned to Kate K. from the age of six months until she was almost two years old. She was in a total of four placements during the 2017 dependency.^[1]

Mother is also bipolar, diagnosed since childhood, and has also been diagnosed with PTSD and borderline personality disorder. She tends to resist taking her psychotropic medications and admittedly had been off her medications since Antonio T.'s funeral. The detention report described Mother's behavior as “erratic” and “agitated.” She was “constantly pacing, waving her arms in the air, and raising her voice.”

Mother attributed her deteriorated mental state and relapse on drugs to her grief over her partner's recent death. She said that before Antonio T. died, she had not been using methamphetamine. She also dismissed her somewhat manic behavior as just a personality trait. The children were ordered detained by the court on September 12, 2019.

B. The Petition and Jurisdiction

The petition alleged failure to protect the children under Welfare and Institutions Code^[2] section 300, subdivision (b)(1), citing as a bullet point that “[t]he children sleep in the middle part of the residence that is not connected to the trailers and with no adult supervision in case of a fire. [J.L.] sleeps in a crib and [Katie T.] sleeps in a playpen. The children would be unable to get out in an emergency.” As a separate allegation under section 300, subdivision (b)(1), the petition alleged the children were at risk due to “the inability of the mother to provide regular care for the children due to the mother's substance abuse and mental illness.” There were several bullet points under each of the foregoing statutory allegations, illustrating the nature of the problem. For the children with living but absent fathers, there were allegations based on the fathers' failure to protect the children from Mother and leaving their children without provision. (§ 300, subds. (b)(1), (g).)

On November 27, 2019, after hearing evidence and argument, the court sustained the allegations of the petition, with the exception of one bullet point. The petition had alleged that Mother drove J.L. and Katie T. in the car while under the influence of methamphetamine, and the court found the allegation was unsubstantiated. The court assumed jurisdiction over the children.

C. Katie T.'s Placement and Her Visitation with Her Family

1. The placement with May E., Katie T.'s paternal aunt

Both Antonio T. and Katie T. were enrolled members of the Round Valley Indian Tribes (Tribe). Antonio T. was also the presumed father of J.L., Katie T.'s three-year-old sister, but biological parentage had not been established, and she was not eligible for membership in the Tribe. As soon as the children were detained, Katie T. was placed in a foster home in San Diego at the Tribe's request, ^[3] and J.L., with whom she was especially closely bonded, was placed with her. Their foster mother was Katie T.'s aunt May E., the paternal half-sister of Antonio T.

After the children were detained, their maternal aunt, Kate K., cleaned up her house and made necessary repairs. She got rid of the possum and the crow. Kate K.'s home was once again approved as a foster home by the Resource Family Approval Program and she was approved as a foster parent. In late September or early October 2019, J.L. was returned to Kate K.'s house. On November 1, 2019, the three older boys (ages 6, 8 and 9) were also returned to the same house from which they had been detained, with Kate K. as their foster mother. The Tribe objected to returning Katie T. to that house or to Kate K., and Katie T. remained in San Diego.

On November 26, 2019, Mother's counsel asked the court to change Katie T.'s placement to maternal aunt Kate K. At that time, the children's attorney agreed with Mother's attorney that Katie T. should be moved closer to Mother to facilitate reunification. The Agency took no position. The Tribe opposed changing Katie T.'s placement. After hearing further argument the next day, the court refused to change Katie T.'s placement.

May E. is an educational training consultant for a software company, designing training programs for adults. She works from home but occasionally travels out of the area for work. May E.'s husband and their three-year-old daughter also live in the home. Her husband is an artist who creates paintings and crafts invoking Native themes. He also works from home, but they stagger their work hours so they can give Katie T. a lot of one-on-one attention. May E. was also studying childhood development in a series of courses in community college at the time of the disposition hearing.

May E. described her motivation to care for Katie T. as arising from a desire to help children in need, together with the deep love she feels for her deceased brother and now for Katie T. She and Katie T. had met only once before Antonio T. died, when Mother and Antonio T. brought the children to visit May E. on Father's Day in 2019. Nevertheless, she and her husband have expressed their desire to adopt Katie T. if reunification fails.

The Tribe-approved placement is some 700 miles and a 12 hour drive one way from Mother, Katie T.'s siblings, both of her grandmothers, her aunt Kate K. (by whom she primarily had been raised), and even her Tribe's reservation. In October 2019, a different judge-Judge Ann C. Moorman,...