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

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In re NICHOLAS G. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TIFFANY G. et al., Defendants and Appellants.

B319782

California Court of Appeals, Second District, Seventh Division

April 13, 2023

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No 18CCJP04900A-C, Lisa A. Brackelmanns, Juvenile Court Referee. Affirmed in part. Conditionally affirmed in part and remanded with directions.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Tiffany G Caitlin Christian, under appointment by the Court of Appeal for Defendant and Appellant Robert H. Tarkian &Associates and Arezoo Pichvai for Plaintiff and Respondent.

PERLUSS, P. J.

Tiffany G., the mother of four-year-old Nicholas G.,^[1] three-year-old Elizabeth H. and two-year-old Hope H., appeals the juvenile court's April 6, 2022 orders denying her petition to reinstate family reunification services and terminating parental rights. Tiffany contends the court erred in denying her petition based on its findings that she had failed to present evidence of changed circumstances and reinstatement of reunification services was not in the children's best interests. She contends the court erred in terminating parental rights because Nicholas was not likely to be adopted and the sibling-relationship exception to termination of parental rights applied. Tiffany also contends remand is required because the Los Angeles County Department of Children and Family Services and the juvenile court failed to comply with their duties of inquiry under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related California law. The Department does not oppose a limited remand for ICWA compliance.

Robert H., the presumed father of all three children, appeals the order terminating his parental rights, joining in Tiffany's arguments to the extent they benefit him.

We affirm the order denying Tiffany's petition to reinstate reunification services. We conditionally affirm the order terminating parental rights and remand for the Department and the juvenile court to comply with ICWA and California law.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition for Newborn Nicholas and the Court's ICWA Finding

In October 2018 Tiffany and Robert pleaded no contest to an amended petition under Welfare and Institutions Code section 300, subdivision (b),^[2] alleging they each had a long history of using methamphetamine; both currently used methamphetamine and other illicit drugs; and Tiffany had used illicit substances during her recent pregnancy with Nicholas, resulting in his testing positive for amphetamines at birth, all of which placed Nicholas at substantial risk of serious physical harm. The juvenile court declared Nicholas a dependent child of the court, removed him from parental custody and ordered family reunification services for Tiffany and Robert, including drug and alcohol programs for both parents with random weekly drug testing. Visitation was to be monitored.

Tiffany and Robert completed ICWA-020 Parental Notification of Indian Status forms in advance of the initial detention hearing in August 2019, checking the boxes indicating they had no Indian ancestry as far as they knew. Based on Tiffany's and Robert's denials of any Indian ancestry, the court stated it had no reason to believe Nicholas was an Indian child and found ICWA did not apply. In its September 6, 2018 jurisdiction/disposition report, the Department stated Tiffany and Robert had told the social worker during a post-detention interview that Nicholas had no Indian ancestry; he was a "Caucasian" child. Neither the Department nor the court made any further ICWA inquiries as to Nicholas.

2. Nicholas's Six-month Review Hearing

At the six-month review hearing on June 2019 (§ 366.21, subd. (e)), the court found a substantial risk to Nicholas's physical safety if he were returned to his parents' custody. The court found Robert's progress in his case plan minimal at best and terminated his family reunification services. The court found Tiffany in partial compliance and continued her services.

3. Newborn Elizabeth's Detention, a New Dependency Petition and the Court's ICWA Finding

In August 2019 Tiffany gave birth to Elizabeth. Both Tiffany and Elizabeth had positive toxicology screenings for amphetamines at Elizabeth's birth. Elizabeth was immediately detained, and the Department filed a section 300 petition for her.

In September 2019 the court sustained an amended section 300, subdivision (b), petition, finding Tiffany had a long history of substance abuse; Tiffany used illicit substances while pregnant with Elizabeth; Robert was a daily user of methamphetamine and cocaine; and both parents' substance abuse and failure to protect placed Elizabeth at substantial risk of serious physical harm. The court declared Elizabeth a dependent child of the court and removed her from parental custody. The court granted Tiffany family reunification services, again requiring her to complete a drug program and participate in random weekly drug testing, and denied Robert family reunification services pursuant to section 361.5, subdivision (b)(10). The court ordered monitored visitation for both parents.

As to ICWA, Tiffany and Robert supplied ICWA-020 forms at Elizabeth's August 2019 detention hearing again indicating they had no Indian ancestry as far as they knew. Based on those forms, the court found ICWA did not apply. Although maternal great-aunt Ronalda S. and maternal great-uncle Jesse S. were present at Elizabeth's detention hearing, they were not asked about her Indian ancestry.

4. The 12-month Review Hearing for Nicholas; the Six-month Review Hearing for Elizabeth

At the March 2020 12-month review hearing for Nicholas (§ 366.21, subd. (f)) and the six-month review hearing for Elizabeth, the court found Tiffany's progress with her case plan insubstantial. Still, the court continued Tiffany's family reunification services for both children.

5. Hope's Detention at Birth, the Filing of a New Dependency Petition and ICWA Findings

In August 2020 Tiffany gave birth to Hope and both tested positive for amphetamines. Hope was immediately detained. The court found, based on Robert's and Tiffany's new ICWA-020 forms again denying knowledge of Indian ancestry, that ICWA did not apply.

The Department filed a new section 300 petition in August 2020 as to Hope, alleging Tiffany's use of illicit drugs during her pregnancy with Hope, her and Robert's continued substance abuse and failure to protect their children placed Hope at substantial risk of serious physical harm (§ 300, subds. (b), (j).).

6. The Court's Orders Terminating Tiffany's Family Reunification Services and Setting the Selection and Implementation Hearing for Nicholas and Elizabeth

In October 2020 the court held the 12-month review hearing for Elizabeth and the 18-month review hearing for Nicholas (§ 366.22). Citing Tiffany's failure to participate consistently in a drug treatment program and her continuing substance abuse, the court terminated Tiffany's family reunification services with Nicholas and Elizabeth and set a selection and implementation hearing pursuant to section 366.26 for both children for February 21, 2021.

7. The Court's Jurisdiction Findings and Disposition Order Concerning Hope and the Order Setting the Selection and Implementation Hearing for Hope

The court sustained the new petition as to Hope at the December 2020 jurisdiction hearing (§ 300, subds. (b), (j)). At a March 2021 disposition hearing the court declared Hope a dependent child of the court and removed her from parental custody. The court denied Tiffany and Robert family reunification services pursuant to section 361.5, subdivision (b)(10), (11), (13), and set a selection and implementation hearing for Hope for June 24, 2021. That hearing, along with the selection and implementation hearings for Nicholas and Elizabeth, was continued several times.

8. Tiffany's Section 388 Petition To Reinstate Her Family Reunification Services After Giving Birth to Jacob

In November 2021 Tiffany filed a section 388 petition seeking reinstatement of her reunification services. Tiffany's petition alleged she had enrolled in a residential drug treatment center in August 2021 and shortly thereafter gave birth to Jacob H. The Department allowed Jacob to reside with her at the drug treatment facility due to her significant progress in the treatment program.^[3] Tiffany submitted evidence of 16 clean drug tests and consistent participation in a 12-step program and counseling.

Tiffany's petition acknowledged Nicholas had been residing in Arizona with Ronalda since his placement with her in December 2019; the court had ordered an evaluation under the Interstate Compact on the Placement of Children (ICPC) for the potential placement of Elizabeth and Hope with Ronalda's granddaughter Kristie L. and the ICPC had recently been approved. However, Tiffany urged the court not to place Elizabeth and Hope in Arizona but to allow them to remain in California, if not in her custody, then at least with an order reinstating her family reunification services.

9. The April 2022 Hearing on Tiffany's Section 388 Petition and the Selection and Implementation Hearing for All Three Children

The hearing on Tiffany's section 388 petition and the selection and implementation hearing for all three children was held on April 6, 2022. By that time Elizabeth and Hope had been placed with Kristie; Nicholas remained placed with Ronalda. All three children were thriving in their placements. Kristie wished to adopt Elizabeth and Hope....