L. A. Cnty. Dep't of Children & Family Servs. v. Erica G. (In re Satya G.)

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In re SATYA G., A Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ERICA G., Defendant and Appellant.

B328102

California Court of Appeals, Second District, Seventh Division

February 14, 2024

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County, No. 20CCJP04700A Marguerite D. Downing, Judge. Conditionally affirmed with directions.

Ernesto Paz Rey, under appointment by the Court of Appeal for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Senior Deputy County Counsel, for Plaintiff and Respondent.

SEGAL Acting P. J.

INTRODUCTION

Erica G. appeals from the juvenile court's order terminating her parental rights to her 12-year-old son Satya G. under Welfare and Institutions Code section 366.26^[1] and the order denying her petition under section 388. Erica argues the court failed to enforce its order for conjoint therapy and delegated control of her visitation with Satya to the child and his therapist, errors which, in Erica's view deprived her of due process of law. Erica also argues the court erred in finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply because the Department failed to conduct an adequate inquiry under section 224.2, subdivision (b). The Los Angeles County Department of Children and Family Services argues that Erica forfeited her challenge to the court's orders at the disposition and subsequent review hearings and that, even if she didn't, the court did not err and did not abuse its discretion in denying the section 388 petition. The Department concedes, however, it failed to comply with ICWA and related California law. We affirm the order denying Erica's petition under section 388, conditionally affirm the order terminating Erica's parental rights, and direct the juvenile court to ensure the Department conducts a proper inquiry into Satya's possible Indian ancestry.

FACTUAL AND PROCEDURAL BACKGROUND

A. Erica and Her Boyfriend Fight in the Presence of Satya, the Department Files a Petition Under Section 300, and the Court Detains Satya

In late August 2020 Erica called the police to report that her boyfriend Jose A. came to her motel room, became upset, and pushed her and Satya down to the ground. When the social worker arrived at the motel to investigate, Erica pretended to be Satya's "aunt" (claiming Satya's mother was out), and Satya denied any domestic violence had occurred.

One week later, Satya's paternal grandmother, Shonna M., told the social worker that she went to the motel to pick up Satya, that Satya said Erica and Jose had fought, and that Satya was afraid to go back to them. Satya repeated these allegations to the social worker, adding that Erica and Jose fought "a lot" and that he "has to hide under the bed." Satya also stated Erica drank alcohol (sometimes finishing a entire bottle in one day) and smoked "weed" and "something out of a 'big bowl thing.'" When asked about the incident in the motel room, Satya confirmed that Jose pushed Erica but denied that Jose pushed him. Satya told the social worker that he was "scared" of Erica and that he did not like the fighting between Erica and Jose. The Department's detention report cited seven prior referrals to the Department involving Erica's substance abuse or domestic violence between Erica and Satya's father, John G., or both.

The Department filed a petition under section 300, subdivision (b), alleging: (1) Erica and Jose's history of engaging in violent altercations in Satya's presence, and Erica's failure to protect Satya from Jose, endangered Satya's physical health and safety and placed him at risk of serious physical harm^[2]; and (2) Erica's history of substance abuse and current use of alcohol and marijuana rendered her incapable of providing regular care of Satya, which endangered his physical health and safety and placed him at risk of serious physical harm. The following week, the court detained Satya from Erica, found that John was deceased, and ordered the Department to find temporary placement for Satya. The court also ordered monitored visitation for Erica three times a week for three hours per visit.

B. The Court Sustains the Petition, Removes Satya from Erica, and Finds Visits Would Be Detrimental

The Department placed Satya with Shonna, and the social worker conducted additional interviews of the family. Satya reiterated that Erica and Jose fought a lot and that sometimes Erica called the police. Satya also said that Erica drank alcohol "every night" and smoked "'weed,'" a "'green[-]like bush,'" and that during those times he "'[b]arely'" ate and had "'to sneak'" food. Satya said that sometimes when he smelled the marijuana he felt "'loopy.'" Satya also told the social worker that Erica physically disciplined and "hurt" him. Satya told the social worker that he did not want to speak with Erica on the telephone or have in-person visits with her. Erica denied that Jose was her boyfriend, that Satya witnessed any physical violence in the home, and that she regularly used marijuana or drank alcohol to the extent alleged in the petition. A police report of the August 2020 incident reflected that Erica told the police Jose entered her motel room through a window, pushed her and Satya to the ground, and threatened to kill them both or to have someone "'do it'" for him.

On October 28, 2020 the court sustained each of the counts in the petition and declared Satya a dependent child of the court. Finding that Erica was "in complete denial," the court removed Satya from Erica and maintained his placement with Shonna. The court ordered Erica to participate in a domestic violence support group, individual counseling, conjoint counseling with Satya "when recommended by her therapist and [Satya's] therapist," a parenting program, and random drug testing. Finally, the court found visitation would be detrimental to Satya.

C. Erica Eventually Complies with Her Case Plan, the Court Lifts the Detriment Finding, but Satya Refuses To Have Anything To Do with Erica

In the 12 months following the jurisdiction and disposition hearing, Satya adjusted well to living with Shonna. However, he continued to "exhibit fear and anxiety" at each monthly check-up meeting when the social worker asked him if he wanted to have a phone call or in-person visit with Erica. Satya told the social worker that he was afraid of Erica "for fear that [she] would yell and physically hit him." On a scale of 0 to 10, with 10 representing "absolute fear," Satya stated he had a fear level of 8 if he had to talk to Erica on the phone and a fear level of 10 if he had to visit her in person. He denied Shonna coerced him to make the allegations of abuse against Erica, and each month he confirmed he wanted to live with Shonna. Satya told the social worker: "'I don't want to see my mom until I am [20] to [24] years old because I have nightmares and am afraid of her still.'"^[3] Satya again explained he was afraid of Erica because she drank alcohol and smoked marijuana, yelled at him, and hit him. Satya said he "was worried and anxious about being returned to [Erica]," which interfered with his sleep, and he described the physical abuse that Erica inflicted in the past.

Satya's therapists consistently declined to recommend commencing conjoint counseling sessions, concluding Satya was not yet ready to meet with Erica. One therapist stated it was not "clinically appropriate" for Satya to participate in family therapy because it would "create barriers" to his "continued individual therapeutic engagement and progress." The therapist added that Satya's "verbalized resistance toward[ ] family therapy engagement" further supported her assessment.

Meanwhile, Erica tested positive for marijuana the month after the jurisdiction and disposition hearing and missed several drug tests in succession. Eventually, Erica enrolled in a substance abuse treatment program and began to test negative for drugs. Erica continued to deny she ever placed Satya in danger or physically hurt Satya, but told the social worker she understood the court had prohibited visits with him and permitted conjoint counseling when recommended by Satya's therapist.

At the six-month review hearing under section 366.21, subdivision (e), the court maintained Satya's placement with Shonna, finding that returning him to Erica would create a substantial risk of detriment to his safety. The court set hearings every two to three months to check on the progress of conjoint counseling. At each of these hearings, Erica did not ask the court for any additional orders, and the court continued its prior orders.

At the 12-month review hearing under section 366.21, subdivision (f), the court found that, although Erica had complied with her case plan, there would be a substantial risk of detriment to Satya's safety if the court returned him to Erica. The court, however, lifted its previous finding that visitation would be detrimental. The court explained that notwithstanding Satya's allegations of physical abuse, the Department did not allege in its petition she had abused the child. The court stated: "My concern is that Satya seems to be-it appears to the court that he is just adding stuff, so this case is just getting bigger and bigger." The court also stated: "At some point, this child needs to sit down and talk to his mother, for his sake and for her sake." The court ordered "conjoint in a therapeutic environment" once the therapist determines "it to be appropriate to commence" and stated, "We can even do conjoint in a virtual environment, if there is some safety issue, but . . . we need to move...