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

1

In re DEREK M. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOHNNY M. and CHRISTOPHER C., Defendants and Appellants.

B320496

California Court of Appeals, Second District, Second Division

April 7, 2023

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County. No. 18CCJP06928A-C Philip L. Soto, Judge. Affirmed in part and conditionally reversed in part with directions.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant Johnny M.

Michelle Jarvis, under appointment by the Court of Appeal for Defendant and Appellant Christopher C. Dawyn Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Senior Deputy County Counsel, for Plaintiff and Respondent.

LUI P. J.

Johnny M., the father of Derek M., and Christopher C., the father of Aliyah C. and Alyssa C., appeal from the juvenile court's orders terminating parental rights under Welfare and Institutions Code^[1] section 366.26. Johnny also appeals the juvenile court's denial of his section 388 petition. The mother of all three children is not a party to the appeal.

Johnny contends the juvenile court abused its discretion in denying the section 388 petition. He challenges the denial on the grounds that he presented new evidence showing a change of circumstances, and therefore established it is in Derek's best interests to have another chance to reunify and enjoy unmonitored visits with his father. Johnny also argues for reversal of the order terminating his parental rights based on the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(B)(i). He contends that because he maintained regular visitation and contact with Derek, Derek had a substantial and positive emotional relationship with his father, thereby establishing that termination of Johnny's parental rights would be detrimental to Derek.

Johnny and Christopher both contend the juvenile court's finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply was erroneous because it was predicated upon a defective ICWA inquiry by the Los Angeles County Department of Children and Family Services (DCFS).^[2]DCFS does not oppose a remand for further inquiry in accordance with ICWA.

We disagree with Johnny's assertions regarding the juvenile court's findings and orders denying his section 388 petition and terminating parental rights under section 366.26. However, we agree that further ICWA inquiry is warranted in this case, and therefore conditionally reverse the juvenile court's orders terminating Johnny's and Christopher's parental rights and remand the matter for the limited purpose of ensuring compliance with the requirements of ICWA and related state law. If, based on the completed ICWA inquiry, the juvenile court finds no reason to believe Derek, Aliyah or Alyssa is an Indian child, or if no tribe or agency determines any of the children is an Indian child, the orders terminating parental rights shall be reinstated as the orders of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

1. Initial detention, adjudication and disposition Derek was born in April 2010.

In July 2017 DCFS received a referral alleging a domestic violence incident between Mother and Johnny during which both parents grabbed Derek. DCFS substantiated the allegations, referred Mother to counseling, and closed the referral. Mother obtained a permanent restraining order against Johnny protecting herself and Derek.

Aliyah was born in March 2018.

In September 2018, DCFS received a new referral alleging general neglect of Derek and Aliyah by Mother. At that time, Mother, Derek and Aliyah were living with Christopher, and Johnny's whereabouts were unknown. On October 26, 2018, DCFS filed a section 300 petition on behalf of Derek and Aliyah alleging the children were at risk due to the previously reported domestic violence between Johnny and Mother, Mother's substance abuse (methamphetamine and amphetamine), and Christopher's substance abuse (alcohol).

The juvenile court sustained the section 300 petition and at the disposition hearing on December 13, 2018, ordered the children removed from parental custody with reunification services and monitored visitation. The court ordered Johnny to participate in a 26-week DCFS/court-approved domestic violence program for perpetrators, a parenting class, and individual counseling with a licensed DCFS-approved therapist to address child protection, conflict resolution, and anger management.

2. Reunification: December 2018 to June 2020

Between December 2018 and May 2019, Johnny had weekly monitored visits with Derek. Derek reported that he loved his visits with both his mother and his father, and he wanted to live with both of them.

Alyssa was born in May 2019, and DCFS filed a section 300 petition as to her on May 31, 2019. The juvenile court sustained the petition and ordered Alyssa to remain in Mother's custody. Mother began overnight visits with Derek and Aliyah on June 1, 2019. At the six-month review hearing on June 13, 2019, the juvenile court returned Derek and Aliyah to Mother's custody with family maintenance services. The court granted Johnny unmonitored visits, once a week for four hours.

Johnny completed his parenting program (16 classes) in June 2019, and his domestic violence program (26 sessions) in August 2019.

Derek reported that he enjoyed spending time with his father and asked to have overnight visits with him. On November 1, 2019, DCFS granted Johnny overnight weekend visits with Derek, which continued until the COVID-19 pandemic hit in March 2020. Thereafter, Derek and Johnny's visits took place over video chat.

3. Re-detention and adjudication: May to August 2020

In May 2020, Mother tested positive for methamphetamine and Christopher also relapsed. On May 20, 2020, Derek was moved to Johnny's home. But the next day DCFS received an anonymous text message that Johnny was using methamphetamine. On May 22, 2020, Johnny tested positive for methamphetamine and amphetamine. Derek was returned to his mother's care on June 3, 2020.

On June 12, 2020, DCFS detained Derek, Aliyah, and Alyssa and placed them in foster care. Derek said he felt good about being placed in foster care because he only felt safe in foster care or with Johnny. The foster parents reported that Derek, Aliyah, and Alyssa were comforted by each other's presence and wanted to be together.

On August 12, 2020 the juvenile court ordered the children removed from the parents with reunification services. The court ordered Johnny to participate in a full drug/alcohol program for a minimum of six months, random or on-demand drug testing, parenting classes, and individual therapy.

In an interview with DCFS on July 10, 2020, Johnny admitted that he used methamphetamine with Mother on a regular basis for about two years starting when Derek was three or four years old. But he claimed he had been sober until two weeks before Derek was placed in his care, and his last drug use was the day of his positive test in May. He told DCFS he intended to remain sober and comply with all programs to get Derek back, but he tested positive for methamphetamine and amphetamine again that day.^[3] DCFS found Johnny's statement that he had refrained from drug use prior to May 2020 was not credible.

4. Reunification: August 2020 to December 2021

Between August and October 2020, Johnny attended an eight-week outpatient program through Kaiser, and in November he enrolled in an outpatient program through MFI Recovery Center. But he tested positive for methamphetamine and amphetamine on December 8, 2020, and between August 5, 2020, and January 7, 2021, all 15 of his other scheduled drug tests were "no-shows."

On January 22, 2021, all three children were placed with their maternal great uncle Alejandro and his wife Diana, who stated they were open to adopting the children in the event reunification with the parents failed. Derek reported being happy to be with his relatives.

Johnny continued with the MFI program until March 31, 2021, when he was discharged for lack of attendance. In January and March he had two negative drug tests with MFI, but on February 25, 2021, he tested positive for methamphetamine and amphetamines. Johnny missed two DCFS-scheduled drug tests in January and February. In the meantime, however, Johnny's weekly two-hour visits with Derek were going well.

At the six-month review hearing on March 25, 2021, the juvenile court ordered continued reunification services. The court ordered Johnny to continue drug testing, but specified that a missed test would be considered a positive test. Thereafter, Johnny missed the next five drug tests scheduled by DCFS in April, May, and June 2021.

Johnny re-enrolled at MFI on July 22, 2021. MFI reported Johnny had started a medication to help with addiction. In August and September, 2021, he missed two tests and had three negative drug tests with MFI. During the same period he missed three DCFS drug tests.

Johnny attended the majority of his weekly monitored visits with Derek, but started missing visits over the summer. When he missed visits, Johnny did not call ahead to cancel, nor did he call afterwards to check on Derek. Derek continued to state that he would like to return to his father's care, but if that did not happen he wanted to remain with Alejandro and Diana.

By September 2021, Derek was showing major improvements in his behavior in his placement with Alejandro and Diana. He was attentive and helpful at home, and had made great progress with his schoolwork. Derek was affectionate...