L.A. Cnty. Dep't of Children & Family Servs. v. Sue L. (In re Alecia S.)

In re ALECIA S., a Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDRENAND FAMILY SERVICES, Plaintiff and Respondent, v. SUE L. et al., Defendants and Appellants.

B299174

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

April 10, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK78618)

APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Conditionally affirmed.

Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant Sue L. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Ryan S.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

____________________

Sue L. (Mother) and Ryan S. (Father) appeal from the order terminating their parental rights to then four-year-old Alecia S. under Welfare and Institutions Code¹ section 366.26. The parents challenge the juvenile court's finding the beneficial parental relationship and sibling relationship exceptions to adoption did not apply. In addition, the parents argue the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree the Department failed to show it provided updated ICWA notice to one of the tribes identified by Alecia's family members. Accordingly, we remand the matter to allow the Department and the juvenile court to remedy that violation of federal and state law. We otherwise conditionally affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Dependency Case of Alecia's Sibling

On November 16, 2009 the juvenile court declared Alecia's sister, then three-year-old Essence S., a dependent of the court based on domestic violence between Mother and Father and Mother's emotional problems, including schizophrenia and bipolar disorder. On May 5, 2011 the court terminated the parents' family reunification services. On August 29, 2012 the court terminated jurisdiction and placed Essence with her paternal great-grandmother as her legal guardian.

B. The Referral, Investigation, and Petition

On November 21, 2016 the Department received a referral stating Mother reported to law enforcement that Father attempted to choke her during an argument in the presence of then two-year-old Alecia. Mother stated Father threw her against the refrigerator and put his hands around her throat to strangle her. Father let go of Mother's throat when Alecia began to cry, "Daddy! Daddy!" Father was arrested, and Mother obtained a temporary restraining order against him.

On January 3, 2017 the Department filed a section 300 petition on behalf of Alecia under section 300, subdivisions (a), (b)(1), and (j). Counts a-1, b-1, and j-1 alleged the parents had a history of domestic violence and engaged in violent altercations in Alecia's presence. On November 19, 2016 Father forcibly threw Mother against a refrigerator and choked her in Alecia's presence. Mother sustained a laceration to her wrist and scratches on her collarbone, chest, and right hand. Further, Essence was currently receiving permanent placement servicesbecause of the parents' domestic violence. Count b-2 alleged Father had mental and emotional problems including suicidal ideation. Count b-3 alleged Father was a current abuser of marijuana. The court detained Alecia from Father and released her to Mother.

C. Jurisdiction and Disposition Hearing

At the February 2, 2017 jurisdiction and disposition hearing, the juvenile court sustained the allegations in counts a-1, b-1, b-2, and j-1 but dismissed count b-3 (marijuana abuse). The court declared Alecia a dependent of the court under section 300, subdivisions (a), (b)(1), and (j), and ordered Alecia placed in Mother's home under the Department's supervision. The court granted family maintenance services for Mother and enhancement services for Father. The court ordered the criminal protective order to remain in effect. The court granted Father monitored visits for a minimum of two times a week for one hour. The court ordered Mother could not be the monitor or be present during Father's visits. The court also ordered Father to participate in a 52-week domestic violence counseling program and individual counseling to address domestic violence, substance abuse, and other case issues.

D. Placement of Essence

In April 2017 Alecia and Essence's 85-year-old paternal great-grandmother, who by then was suffering from dementia, could no longer care for then 10-year-old Essence. The paternal great-grandmother wanted Essence to be placed with Robin R., a church friend who had known Essence since she was two or three years old. Robin was a foster parent and was interested inhaving Essence placed in her care. Essence was provided with a temporary placement, and then on August 29, 2017 she was placed with Robin. Essence was happy and comfortable in Robin's home, and Robin wanted to be her legal guardian.

During this time period Essence had weekly visits with Mother and Alecia for five hours at Mother's home. The Department recommended Essence not return to her Mother's care until it could assess Mother's compliance with her case plan, mental health treatment, and visitation.

E. Section 387 Petition and Adjudication

On March 21, 2017 the police reported Mother allowed Father to spend the night in her house despite the restraining order. Mother and Father had a verbal argument the next morning. When Mother contacted the police, Father fled the home. The social worker was unable to contact Father, and his whereabouts were unknown. Father had not visited Alecia since February 2, 2017. At a July 21, 2017 hearing, the juvenile court declined to order additional enhancement services for Father. On August 5, 2017 Father broke into Mother's home and choked her while Alecia was in the home. Father broke Mother's phone when she tried to call law enforcement.

On August 11, 2017 Alecia was removed from Mother's home and placed in foster care. On August 16 the Department filed a section 387 petition alleging Mother and Father continued to engage in violent altercations in Alecia's presence. Mother violated the restraining order and failed to protect Alecia by allowing Father to reside in the home in violation of the court's order.

The juvenile court detained Alecia from Mother and ordered Mother to receive family reunification services. The court granted Mother monitored visits for a minimum of two times a week for one hour. The court ordered the parents not to visit together. The court ordered the Department to try to place Alecia, who was living with Mrs. B., in the same home as Essence.

On August 30, 2017 Father went to the maternal grandparents' home, where Mother was staying, and threatened maternal grandfather's friend. On September 13 Mother called the police after Father knocked on her apartment door. Father was arrested and incarcerated for violating the restraining order.

The social worker arranged monthly sibling visits for Alecia and Essence with Robin. Robin reported as to a September 28, 2017 visit Essence and Alecia were happy to see each other, and the visit went well.

Mother consistently visited Alecia in 2017 two times a week. Mother actively engaged with Alecia by reading, playing, and talking to her, and showing her pictures of family members. Mother was attentive to Alecia's needs and gave her positive reinforcement, hugs, kisses, and toys. Mother told Alecia she loved her and would do all she could to ensure Alecia returned home. Father did not visit because he was still incarcerated.

At the November 2, 2017 adjudication hearing, the juvenile court sustained the allegations in the section 387 petition. At the contested disposition hearing on December 1, the court removed Alecia from Mother's custody and denied family reunificationservices to Mother and Father under section 361.5, subdivision (b)(10).²

F. Reports for the Selection and Implementation Hearing

The selection and implementation hearing was initially set for February 22, 2018, but the hearing was continued throughout 2018 while the Department evaluated alternatives to provide permanency for Alecia. The January 31, 2018 section 366.26 report stated Mother had been very consistent with her biweekly visits. Mother had "a very positive bond" with Alecia. She read and taught Alecia about various subjects in books, took pictures, watched movies, and played with Alecia using age appropriate toys. During visits, Alecia appeared happy and engaged, and was affectionate towards Mother. Father initially was consistent with his visits, but he had missed the last seven visits because of his incarceration.³ During visits, Father gave Alecia hugs andkisses. Alecia would often watch a show or movie on Father's cellphone and fall asleep on his lap. Alecia was "very reserved in [F]ather's presence, non-verbal, and non-responsive." Alecia and Essence had one-hour visits every Friday. The Department recommended adoption as Alecia's permanent plan.

As of June 2018 Mother had weekly visits with Alecia every Tuesday for two hours. Mother's Friday visits had been terminated because Mother constantly missed the visits due to her work schedule. During her Tuesday visits, Mother engaged with Alecia, helped with toilet training, and was attentive to her needs. Mother brought toys and books to engage with Alecia, and sang, read, and took pictures with the child. Father had five visits since...