L. A. Cnty. Dep't of Children & Family Servs. v. Shawn M. (In re Elizabeth M.)

19 Cal.App.5th 768

228 Cal.Rptr.3d 213

IN RE ELIZABETH M., a Person Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Shawn M., Sr., Defendant and Appellant.

B284123

Court of Appeal, Second District, Division 7, California.

Filed January 22, 2018

Jamie A. Moran, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, Kim Nemoy, Principal Deputy Counsel, for Plaintiff and Respondent.

PERLUSS, P. J.

Shawn M., Sr., the father of seven-year-old Shawn M., Jr., six-year-old Michael M., five-year-old Elizabeth M. and four-year-old Gail M., appeals from the order terminating his parental rights to Elizabeth and Gail under Welfare and Institutions Code section 366.26.¹ Shawn contends the court abused its discretion in denying the request of the children's mother, Crystal T., in which he joined, to continue the selection and implementation hearing for Elizabeth and Gail to the new date scheduled for their brothers' hearing; erred in ruling the sibling relationship exception to the legislative preference for adoption ( § 366.26, subd. (c)(1)(B)(v) ) did not apply; and failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA) ( 25 U.S.C. § 1901 et seq. ). We agree there was an inadequate investigation of Crystal's claim of Indian ancestry. Specifically, although the name of the tribe Crystal identified did not directly correspond to that of a federally recognized Indian tribe, the Los Angeles County Department of Children and Family Services failed to satisfy its affirmative obligation to interview family members and others who could be expected to have relevant information concerning the children's status, and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding ICWA did not apply to these proceedings. Accordingly, we remand the matter to allow the Department and the juvenile court to remedy that violation of federal and state law and otherwise conditionally affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Dependency Proceedings Prior to the Selection and Implementation Hearing

The Department filed the original dependency petition in this case in August 2012, prior to Gail's birth, alleging that Shawn had physically abused his older son, then only two years old, by choking him when he failed to stop crying; Crystal had observed the abuse and failed to protect her son; and the two younger children were at substantial risk of suffering physical and emotional harm because of Shawn's abusive behavior and Crystal's fear of Shawn. (§ 300, subds. (a), (b) & (j).) An amended petition added the allegation that Shawn's mental health condition and criminal history also created a risk of harm to the children, and a second amended petition added the allegation that Shawn had struck his younger son with sufficient force to cause bruising. The juvenile court sustained the second amended petition in substantial part, removed the children from the care and custody of their parents, ordered them suitably placed under the supervision of the Department and directed the Department to provide family reunification services to Shawn and Crystal. We affirmed the jurisdiction findings and disposition order in a nonpublished opinion. (In re Shawn M. (Sept. 23, 2013, B245323).)

At the six-month review hearing (§ 366.21, subd. (f)) in April 2013, the Department reported the children were placed together in foster care. Several weeks later, following Gail's birth, the Department filed a new dependency petition alleging Gail was at risk because of Shawn's physical abuse of his two sons, Shawn's unresolved mental health issues and Crystal's substance abuse. (Crystal had tested positive for opioids at the time of Gail's birth.) The petition was sustained in late July 2013 and Gail was removed from the custody of her parents. The Department was not able to place Gail in the same foster home as her three siblings at that time. The four children were placed together by April 2014.

Reunification services were terminated for the three older children in July 2014. Reunification services for Gail were terminated in December 2014, and the case was set for a February 2015 selection and implementation hearing under section 366.26. In May 2015 the court granted Crystal's petition for modification (§ 388) and returned all four children to Crystal's home under the supervision of the Department.

In February 2016 the Department filed a subsequent petition (§ 342) alleging, in part, that Crystal had physically abused the children. The children were detained from Crystal, and ultimately the court sustained an amended version of the subsequent petition. Initially, the girls were placed together in a prospective adoptive home; the boys were placed together in a different home. By May 2016 the children were moved again. The boys were placed with a prospective adoptive parent, Ms. P. (their sixth placement); the girls were placed together with a prospective adoptive family, Mr. and Mrs. M. (Gail's sixth placement and Elizabeth's eighth). The court ordered the Department to investigate the home of out-of-state relatives (paternal second cousins in Texas) as a potential placement option for all four children. The court again scheduled a section 366.26 selection and implementation hearing.

2. The Selection and Implementation Hearing

The section 366.26 hearing, scheduled for September 13, 2016, was continued six months to March 9, 2017 for completion of a home study for Elizabeth and Gail in their current prospective adoptive placement and for identification of an appropriate placement for the two boys. In a last minute information report to the court submitted several days before the hearing, the Department explained the second cousins in Texas had recently stated they were now uncertain whether they were prepared to go forward with adoption or legal guardianship for the children. The report also advised the court that the boys' current caregiver was not interested in adoption.

The March 2017 hearing was continued to April 5, 2017 for an update on efforts to identify an adoptive home for the two boys and for a contested hearing as to the two girls. In its last minute information report the Department indicated the Texas cousins were now prepared to go forward with legal guardianship for all four children, but not adoption. The Department recommended legal guardianship as to the two boys, based on its lack of success in finding an adoptive home for all four children and behavioral issues with the boys. It also recommended that plans for adoption proceed as to the two girls.

At the hearing the Department reported it had located a potential adoptive placement for Shawn, Jr. and Michael. To pursue that possibility and to permit evaluation of the paternal cousins' home in Texas through the Interstate Compact on the Placement of Children (ICPC), and because Shawn, Sr. was incarcerated and had not been transported to court, the court again continued the hearing—first to May 30, 2017 and then again to June 29, 2017. The court also ordered that Elizabeth and Gail were not to be re-placed absent an emergency.

In last minute reports for the June 29, 2017 hearing the Department notified the court that the Texas relatives remained interested in placement and permanence for the children, but the ICPC evaluation of their home was still pending. A different home with a prospective adoptive placement had been located for the boys; a tentative move to the new residence was scheduled for July 12, 2017. The prospective adoptive parent was aware of a possible relative placement and had acknowledged the relative placement, if found appropriate and ordered by the court, would occur. The home study for the girls' prospective adoptive parents had been approved.

At the June 29, 2017 hearing the Department recommended terminating parental rights for all four children. In response, minors' counsel, who represented all four children, requested a continuance of the hearing as to the two boys because they were not yet in an adoptive placement. She explained, "I do not feel comfortable with making them legal orphans when there is—when their current placement does not have any intent in providing permanence."

At this point one of the paternal cousins, who had come to the hearing from Texas, addressed the court and said he and his wife wanted to adopt all four children and were doing their best to complete the procedures required for them to do so. Counsel for Crystal then requested the court continue the entire matter, so that the ICPC issues could be resolved and the court could address all four children's permanent plan on the same date. Counsel for Shawn, Sr. joined the request.

The court granted the request for a continuance as to Shawn, Jr. and Michael but denied the parents' request to continue the hearing for Elizabeth and Gail, noting they were in a home with an approved adoptive home study and had been in that placement for more than a year. The court stated, "Even if the ICPC were approved for placement at this time with the relatives in Texas, the court would not be inclined to have the children replaced. While the court has continued to consider those relatives for placement, the minors' counsel has already had the court make an order that the children not be replaced." Then, responding to Shawn, Sr.'s comment that he would like all four children placed together with a relative, the court added, "I do understand that. And it's difficult that it's been—that we haven't been successful in getting them placed together at this point. But the girls now have been in this home for over a year, and I think that people need to take that into consideration, too, in terms of their stability and bonding and emotional issues."²

Turning to the permanent plan...