L. A. Cnty. Dep't of Children & Family Servs. v. J.C. (In re B.R.)

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In re B.R., a Person Coming Under the Juvenile Court Law.

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

B322473

California Court of Appeals, Second District, Fifth Division

March 29, 2023

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County No. 20CCJP03816A), Marguerite D. Downing, Judge. Conditionally affirmed with directions.

Suzanne Davidson, under appointment by the Court of Appeal for Defendant and Appellant J.C Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant A.R.

Amir Pichvai for Plaintiff and Respondent.

MOOR J.

Mother and father separately appeal from orders denying their petitions under Welfare and Institutions Code section 388^[1]and terminating parental rights over their child (minor) pursuant to section 366.26. Mother and father both contend the court erred in denying their respective section 388 petitions without a hearing. They both also contend it was error to find inapplicable the parental relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). Finally, father contends that the termination order should be reversed and remanded for compliance with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related California statutes (Welf. & Inst. Code, § 224 et seq.). The Los Angeles County Department of Children and Family Services (Department) contends the orders denying mother and father's respective section 388 petitions were not an abuse of discretion, and that the court correctly determined that the parental relationship exception did not apply to the termination of parental rights. The Department concedes that the record does not include evidence that certain extended family members were asked about the possibility of Indian ancestry, and the case should be conditionally remanded for the juvenile court to direct the Department to conduct the inquiry necessary under ICWA and related California law.

We affirm the court's orders and remand the matter solely for the court to ensure compliance with ICWA and related California statutes.

BACKGROUND

Minor was born in December 2019. In September 2020, the juvenile court sustained petition allegations that minor was at risk of harm based on domestic violence between mother and father. Minor was removed from parental custody, and placed with a maternal great-aunt and uncle (caregivers). The court ordered both parents to complete a domestic violence program^[2]and participate in individual counseling. In addition, the court ordered mother to take a parenting class focused on coparenting with father. It also ordered mother to participate in conjoint counseling, once mother's therapist deemed it appropriate, if mother and father decided to reconcile. Father was ordered to take developmentally appropriate parenting classes. Each parent would have monitored visits with minor, and mother was prohibited from monitoring father's visits or being present during his visits.

Mother appealed, and the findings and orders were affirmed in an unpublished opinion. (In re B.R. (Jul. 20, 2021 B307796) [nonpub. opn.].) We incorporate by reference the factual and procedural background leading up to the appealed orders. As most relevant here, mother and father both had prior relationships involving domestic violence, and the court's jurisdictional findings were supported by substantial evidence of ongoing domestic violence between mother and father. Statements by both mother and father revealed an ongoing lack of trust and serious communication issues between the two about the future of their relationship.

According to the Department's six-month review report, mother and father started parenting classes in the fall of 2020, but neither had enrolled in a domestic violence program until January 2021, or in individual counseling until February 2021. They had each completed 14 sessions of parenting classes, and their visits with minor went well. They remained in a relationship, but had not completed enough individual counseling sessions to start conjoint counseling. Minor appeared to be well-bonded to her caregivers, but was also well-bonded and happy to see mother and father during visits. At the six-month review hearing on March 29, 2021, the court found parents had made substantial progress and continued reunification services for an additional six months.

In June 2021, mother was terminated from her 52-week domestic violence class due to lack of attendance, having completed just nine classes in the previous five or six months. Mother reenrolled in August, and completed a total of 34 classes by late November 2021. Father had attended 16 domestic violence classes, but was in danger of being terminated after he missed four weeks of classes before early August 2021. Both parents had completed their parenting classes and were participating in individual counseling. Mother reported that she and father had their first conjoint counseling session on August 7, 2021, but the social worker was unable to verify that parents had started conjoint counseling. Mother and father visited minor separately, and visits reportedly went well, with minor happy to see each parent. Minor's caregivers maintained a close bond with minor, and were willing to adopt her if parents were not able to reunify.

The Department's 12-month review report recommended terminating reunification services, because neither parent had made substantial progress. The social worker observed that mother and father did not trust each other, gave contradictory responses to questions about whether they remained in a relationship, continued to express suspicion that the other is "engaging with previous partners from previous relationships," and to criticize each other. Their ongoing arguing, described by the social worker as "a constant back and forth petty fight between the parents which doesn't show maturity on either end," when considered with their inability to consider whether they are a good match, showed that the classes they had taken had not resulted in behavioral changes to show a capacity to care for minor. At the 12-month review hearing in December 2021, the court granted father's request for a paternity test, terminated reunification services, and scheduled a permanency planning hearing.

In January 2022, father moved out of state to live and work with family, but maintained daily video calls with minor. The results of father's paternity test showed a very high statistical probability that father was minor's father. Minor was strongly bonded to her caregivers, looking to them "when she is tired, wants to eat, play, or be comforted." The caregivers' family had a strong commitment to providing permanency for minor, but also wanted both parents to visit so minor would know who her biological parents are.

In a status review report filed in late May 2022, the Department reported father initially resisted answering the social worker's questions about the status of his relationship with mother, but reported he was currently in a relationship with her. Mother, however, told the social worker she and father were "getting along with each other but they aren't currently in a relationship with each other." In March 2022, mother finished school to become a dental assistant, but needed to complete internship hours before she could graduate. In the interim, she and her two sons were living with maternal grandmother, and she was working for Instacart to bring in money. Mother continued to visit minor, either at the caregivers' home or in a public place like the park or a restaurant. The social worker observed minor "to have a close bond with the caregiver and all family members," and the caregivers "care for the child as though she [were] their own," and "love the child and have her best interest in mind at all times."

In June 2022, mother and father filed separate section 388 petitions, each seeking an order placing minor with the petitioning parent, or alternatively additional reunification services, including unmonitored visits. Neither petition acknowledged that the other parent was also seeking placement of minor. Describing the change in circumstances, father alleged he "has finished his case plan, he remains involved, and there have been no new incidents since the original petition was filed." In describing why the requested relief was better for minor, father alleged he had finished his case plan, "is sufficiently bonded with his child, has really learned from what has happened, has shown requisite insight, and wants to be there for his child." Mother alleged she was in "full compliance" with her case plan, as she had completed a parenting program and a 52-week domestic violence program, and was participating in ongoing individual counseling sessions. She explained that she and minor "have a bond," she has maintained a parental presence in minor's life, and was "ready, able, and willing to provide a safe home" for minor.

In July 2022, the Department filed two interim review reports and responses to both section 388 petitions. The reports confirmed that mother and father had completed their case requirements, with the exception of conjoint counseling. Letters confirmed the parents did conjoint counseling sessions from August through October 2021, but stopped in November 2021. Mother and father provided conflicting explanations for why they had discontinued conjoint counseling, and whether and when their relationship ended. Although parents reported they were no longer in a relationship, the caregiver reported suspecting that mother was visiting fathe...