In re S.A., A121977 (Cal. App. 3/27/2009)

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In re S.A. et al., Persons Coming Under the Juvenile Court Law LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. SHERRY L., Defendant and Appellant.

A121977

Court of Appeals of California, First Appellate District, Division Three

March 27, 2009

Not to be Published in Official Reports

Appeal from the Lake County, Super. Ct. No. JV-320178.

JENKINS, J.

This is an appeal from the juvenile court's order terminating the parental rights of appellant Sherry L. to her biological children, S.A. and T.M. For the reasons stated herein, we reverse the order and remand the matter to the juvenile court for the limited purpose of ensuring compliance with the notice and inquiry provisions of the Indian Child Welfare Act, 25 U.S.C. sections 1901 et seq.¹

FACTUAL AND PROCEDURAL BACKGROUND

On November 13, 2007, the Lake County Department of Social Services (the Department) filed a juvenile dependency petition, alleging that S.A., born in May 2005, came within Welfare and Institutions Code section 300, subdivision (b) (failure to protect), subdivision (d) (sexual abuse) and subdivision (g) (no provision for support).² According to the petition, appellant, who is developmentally disabled and shows signs of mental illness, placed S.A. at substantial risk of serious physical harm or illness. In particular, appellant had made poor parental choices, including allowing S.A. to be cared for by two registered sexual offenders, her current boyfriend and father of her unborn child, Thomas B., and her former boyfriend, Robert L. Thomas B.'s unsupervised contact with S.A. violated the registered sex offender restrictions placed upon him following his conviction for committing lewd and lascivious acts upon a child under the age of 14. Nonetheless, on November 3, 2007, appellant, distraught over the possible loss of her fourth child to Child Protective Services, threatened to give custody of S.A. to Thomas B. and then to commit suicide.³ Appellant also left S.A. with an acquaintance who was severely physically disabled and unable to care for the minor when appellant was hospitalized due to complications with her pregnancy.⁴

At the initial hearing in this case on November 14, 2007, the juvenile court appointed counsel for appellant, who was still hospitalized due to pregnancy complications and did not appear. The juvenile court then found that a prima facie showing had been made that S.A. came within the provisions of section 300, and thus ordered her detained and placed temporarily in a suitable foster home. The juvenile court also ordered appellant to disclose the names and contact information of her relatives for S.A.'s possible placement.

On December 10, 2007, a jurisdictional hearing was held. Appellant, who remained hospitalized, was not present but was represented by counsel. Following the hearing, the juvenile court found true the allegations in the petition, found that an inquiry had been made regarding whether S.A. was an Indian child, and continued her out-of-home placement.

On January 18, 2008, the Department filed a second petition alleging that T.M., born in January 2008, came within section 300, subdivision (b) (failure to protect), subdivision (d) (sexual abuse), subdivision (g) (no provision for support), and subdivision (j) (abuse of sibling). According to this petition, T.M. was "born premature" with some medical concerns due to appellant's failure to comply with medical orders not to engage in sexual intercourse and to remain on bed rest. The petition further alleged that T.M.'s alleged father, Thomas B., was unable to provide adequate care and shelter due to his history of repeated incarcerations on convictions that included felony sexual abuse of children under the age of 14. At that time, Thomas B. was incarcerated at San Quentin State Prison for parole violations stemming from a felony sexual abuse conviction. The petition also noted that T.M.'s five half-siblings, including S.A., had been abused and neglected.

Following a hearing on January 22, 2008, the juvenile court detained T.M. and, as before, ordered appellant to disclose the names and contact information of her relatives for the minor's possible placement.

On March 3, 2008, a jurisdictional/dispositional hearing was held with respect to both S.A. and T.M. (collectively, the children). In anticipation of the hearing, the Department filed a report which, among other things, attached two psychological assessments of appellant finding that she was mildly mentally retarded, had an IQ of 60, and likely would not benefit from reunification services or be able to develop the necessary skills for effective parenting. Appellant was present at the hearing and testified on her own behalf. Afterwards, the juvenile court, consistent with the Department's recommendations, ordered that the children be removed from appellant's custody and that no reunification services be provided. In addition, the juvenile court found that inquiry had been made regarding the children's Indian status, and that the Indian Child Welfare Act did not apply. The juvenile court thus set a section 366.26 permanency planning hearing for June 30, 2008.

On March 6, 2008, appellant filed a notice of intent to file a writ petition to challenge the dispositional order and the setting of the section 366.26 hearing. However, no such petition was forthcoming, and the section 366.26 hearing went forward as scheduled on June 30, 2008.

In the section 366.26 report, the Department noted, among other things, that the children were placed together in a foster home, and appeared bonded to each other and to their foster parents. The Department opined that it was likely the children would be adopted by their foster parents.

Following the section 366.26 hearing, the juvenile court found the children likely to be adopted and terminated appellant's parental rights to them. This appeal followed.

DISCUSSION

Appellant raises two issues on appeal. First, appellant contends the juvenile court failed to comply with the requirements of section 361.3, which codifies the legislative preference for placement of dependent children with suitable relatives. Second, she claims the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act, 25 U.S.C. sections 1901 et seq. (the ICWA). Each of these errors, appellant claims, provides an independent basis for reversing the order terminating her parental rights. We address each contention in turn.

I. The Relative Placement Preference (Section 361.3).

"When a child is removed from parental custody, the child's relatives are given preferential consideration for placement, whenever possible. (§§ 361.3, subd. (a), 16000, subd. (a), 16501.1, subd. (c)(1); see also § 309 [mandating detention with a responsible relative]; Fam. Code, § 7950, subd. (a)(1) [`Placement shall, if possible, be made in the home of a relative, unless the placement would not be in the best interest of the child'].)" (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055.)

Section 361.3 provides in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. [¶¶ ] . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1. . . . [¶¶ ] (c) For purposes of this section: [¶] (1) `Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated. [¶] (2) `Relative' means an adult who is . . . a grandparent, aunt, uncle, or sibling." (§ 361.3, subd. (a), subd. (c).)

"It is well established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption." (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031.)

"[T]he abuse of discretion standard should be applied to the review on appeal of the juvenile court's determination regarding relative placement pursuant to section 361.3. Such a determination, like decisions in custody cases, involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only `"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]' [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

Here, appellant claims the juvenile court erred by failing to comply with the requirement of section 361.3 that relatives be given preferential consideration when placing a dependant. In particular, appellant claims both the juvenile court and the Department, acting as an "arm of the court," failed to identify and contact her relatives before proceeding with a permanent plan of adoption and terminating her parental rights. The Department, however, claims appellant has forfeited the right to raise a claim pursuant to section 361.3 by failing to do so below. The relevant facts are as follows.

At the hearing on November 14, 2007, when S.A. was initially detained, the juvenile court,...