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

In re I.A. et al., Persons Coming Under the Juvenile Court Law.LOS ANGELES COUNTY DEPARTMENT OF CHILDRENAND FAMILY SERVICES, Plaintiff and Respondent, v. S.A., Defendant and Appellant.

B249416

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

Filed: January 13, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK85786)

APPEAL from orders of the Superior Court of Los Angeles County, Mark Borenstein, Judge. Affirmed.

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.

I. INTRODUCTION

The mother, S.A., appeals from orders terminating her parental rights as to her sons, I.A. and C.A. The mother argues the order in I.A.'s case must be reversed because the Indian Child Welfare Act notices were defective. The mother also contends she and I.A.'s father were not given proper notice of the Welfare and Institutions Code section 366.26 hearing.¹ In addition, the mother asserts the juvenile court erred in finding the sibling relationship exception was inapplicable as to I.A. Finally, the mother challenges the juvenile court's adoptability findings for I.A. and C.A. We affirm the parental termination orders as to both I.A. and C.A.

II. PROCEDURAL HISTORY

On December 16, 2010, the Los Angeles County Department of Children and Family Services (the department) filed a section 300 petition on behalf of eight-year old I.A. The petition alleges: the mother physically abused I.A. by hitting him with a belt; the mother had mental and emotional problems; and the father, D.T., failed to provide I.A. with the necessities of life. At the December 16, 2010 detention hearing, I.A. was detained and placed in foster care. The juvenile court ordered the department to provide notice to the Cherokee tribes, the Bureau of Indian Affairs, and the Secretary of the Interior. D.T. was found to be I.A.'s alleged father.

On March 7, 2011, the mother filed a waiver of her trial rights. The juvenile court amended and sustained the petition as to the mother under section 300, subdivision (b): "The [mother] has mental and emotional problems, including a diagnosis of Bipolar Disorder, which renders the mother incapable of providing regular care of the child. On or about 12/03/2010, the mother was hospitalized for the evaluation and treatment of themother's psychiatric condition. On 12/03/2010 and 12/11/2010, the mother threatened to kill herself, the child, and the Maternal Grandmother. Such mental and emotional condition on the part of the mother endangers the child's physical and emotional health and safety and places the child at risk of physical and emotional harm and damage."

On March 23, 2011, the juvenile court made disposition orders as to the mother. I.A. was removed from the mother's custody. The mother was granted family reunification services and monitored visits. The juvenile court ordered the mother to participate in individual and psychiatric counseling and to take all prescribed psychotropic medication.

On April 22, 2011, I.A.'s father, D.T., appeared in the juvenile court for the first time and was appointed counsel. The father filed a Notice of Indian Status indicating he had Cherokee Indian heritage through the paternal grandmother. D.T. was found to be I.A.'s presumed father. The juvenile court amended and sustained the petition as to the father under section 300, subdivision (g). At the May 6, 2011 disposition hearing as to D.T., the juvenile court ordered notice to be given to the Cherokee tribes, Indian affairs bureau and the interior secretary. D.T. was granted unmonitored visits and ordered to participate in counseling. At the June 22, 2011 progress hearing for I.A., D.T.'s counsel requested a paternity test, which was denied.

On September 30, 2011, the department filed a petition on behalf of C.A., who was born in June 2011. At C.A.'s detention hearing, the juvenile court found the Indian Child Welfare Act was inapplicable. The juvenile court found S.D. was C.A.'s biological father pending the paternity test results. C.A. was detained from the mother and placed with I.A.'s paternal aunt, D.L.

On February 2, 2012, the department filed a second amended petition on behalf of C.A. At the February 2, 2012 hearing, the parents submitted waivers of their trial rights. The juvenile court amended and sustained the second amended petition under section 300, subdivision (b). The juvenile court found the parents had drug abuse and mental and emotional problems. The father, S.D., suffered from: drug induced paranoid schizophrenia; post-traumatic stress disorder; and bipolar disorder. S.D. had anunresolved history of substance abuse and currently abused marijuana and alcohol. In addition, the mother had a history of drug abuse and was a current abuser of marijuana, methamphetamine and alcohol. The parents were granted monitored visits. They were ordered to participate in: random alcohol and drug testing; parenting classes; alcohol and drug counseling; and individual counseling.

At the May 23, 2012 section 366.21, subdivision (f) hearing for I.A., the juvenile court terminated family reunification services for the parents. The juvenile court stated: "The court finds that the [parents] have not consistently and regularly contacted and visited with the [child], that they have not made significant progress in resolving the problems that led to the [child's] removal from the home, and they have not demonstrated the capacity or ability both to complete the objectives of the treatment plan and to provide for the [child's] safety, protection, physical and emotional well-being, and special needs. The court finds that there is not a substantial probability that the [child] will be returned to the custody of the parents within the next period of review and terminates family reunification services." At the December 3, 2012 contested section 366.21, subdivision (e) hearing for C.A., the juvenile court found the parents were in partial compliance with the case plan. The juvenile court terminated family reunification services for the parents.

On January 18, 2013, the juvenile court held a section 366.26 hearing for I.A. and a progress report hearing for C.A. The juvenile court approved C.A.'s visit to his paternal grandmother's home in Maryland. The mother was granted make-up visits after C.A.'s Maryland trip. The section 366.26 hearing for C.A. was set for April 9, 2013. The juvenile court set a contested section 366.26 hearing for I.A. on March 14, 2013. The mother, S.D. and their attorneys were present at the hearing.

At the March 14, 2013 section 366.26 hearing for I.A., neither the mother nor D.T. were present. The juvenile court stated the father denied paternity of I.A. and did not want presumed status. D.T. was dismissed from the case. The juvenile court explained: "The department has confirmed that [D.T.] does not believe he is the father, and he does not wish to participate in these proceedings. I don't think he was given any status earlier.He is dismissed." In addition, D.T.'s counsel was relieved as attorney of record. The juvenile court denied the mother's counsel's continuance motion. The sole basis for the continuance motion was that the mother was not present. The juvenile court denied the continuance request because the mother was present when the hearing was set. The matter was continued on March 15, 2013.

At the March 18, 2013 section 366.26 hearing for I.A., the mother was not present. But she was represented by counsel. The mother's counsel objected to termination of parental rights arguing the sibling exception applied. The juvenile court found no evidence of a substantial sibling relationship because: the siblings had not been raised in the same home; the siblings did not share significant common experiences; and there was no evidence they had a close bond. The juvenile court found I.A. was adoptable and terminated the mother's and D.T.'s parental rights.

At the April 9, 2013 section 366.26 hearing for C.A., the mother and S.D. were present and represented by counsel. The mother's counsel argued C.A. was not adoptable. This was because D.L. was unable to adopt C.A. and there was no approved home study for the paternal grandmother. In addition, the mother's counsel argued the parent-child relationship exception was applicable. This was because the mother visited C.A. on a regular, consistent basis. S.D.'s counsel, Kyle Puro, stated the father supported adoption of C.A. by the paternal grandmother. However, Mr. Puro did not think the child was adoptable by clear and convincing evidence because C.A. did not have a permanent home yet. The father's attorney, Mr. Puro, argued parental rights could not be terminated unless there was an approved home study. The juvenile court found: C.A. was adoptable by clear and convincing evidence; the paternal grandmother had an approved placement study and terminating parental rights would facilitate the paternal grandmother's adoption of C.A.; and the parent-child relationship exception was inapplicable. The juvenile court terminated parental rights and ordered C.A. placed with his paternal grandmother.

The mother filed her notice of appeal on May 10, 2013.

III. FACTS

A. Detention Report For I.A.

The December 16, 2010 detention report summarized several referrals received by the department. On October 6, 2010, a reporting party called the department hotline alleging the mother was verbally abusive towards I.A. The mother also had punched I.A. on the chest with...