L. A. Cnty. Dep't of Children & Family Servs. v. Mark P. (In re Jade P.)

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In re JADE P. et al., Persons Coming Under the Juvenile Court Law.

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

B317169

California Court of Appeals, Second District, Seventh Division

August 12, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County Nos. DK21631, 18CCJP01088, Robin R. Kesler, Juvenile Court Referee. Conditionally affirmed and remanded with directions.

Robert McLauglin, under appointment by the Court of Appeal, for Defendant and Appellant Mark P.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant Jamie M.

Tarkian &Associates and Arezoo Pichvai for Plaintiff and Respondent.

FEUER J.

Jamie M. (Mother) and Mark P., Jr., (Father) appeal from the juvenile court's order terminating their parental rights over 10-year-old Jade P., five-year-old Mark P. III (Mark) three-year-old James P., and two-year-old Ezekiel P. under Welfare and Institutions Code section 366.26.^[1] The parents contend as to Ezekiel the juvenile court abused its discretion in finding the beneficial parental relationship exception to termination of parental rights did not apply. The parents do not challenge the findings as to the other children. The juvenile court did not abuse its discretion.

Further the parents argue, the Department concedes, and we agree as to all four children the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) and related California law. The juvenile court erred in failing to ensure the Department complied with the inquiry and the notice provisions, and the error was prejudicial. We conditionally affirm and remand for the juvenile court and the Department to comply with the inquiry and notice provisions of ICWA and California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral and Dependency Petitions

On January 13, 2017 the Department received a referral alleging Father engaged in domestic violence while he was drunk. Father held Mother in a chokehold and threw her over the back of the sofa to the floor in the presence of five-year-old Jade and seven-month-old Mark. Mother reported that during their four-year relationship, Father hit her 12 times and placed her in chokeholds during most of the incidents.

On February 14, 2017 the Department filed a dependency petition on behalf of Jade and Mark alleging Mother and Father had a history of engaging in physical altercations; Father abused alcohol; and Mother failed to protect the children by allowing Father to reside in the home. On June 5, 2017 the juvenile court sustained the petition under section 300, subdivision (b)(1), declared Jade and Mark dependents of the court, and placed them in Mother's home.

After James was born in February 2018, the Department filed a dependency petition on behalf of James alleging Mother and Father had a history of engaging in physical altercations when Father was under the influence of alcohol; Jade and Mark were current dependents of the court; Mother allowed Father to have unmonitored visits with Jade and Mark in the family home in violation of court orders; Father failed to participate regularly in court-ordered domestic violence classes; and Father was previously convicted of inflicting corporal injury on a spouse or cohabitant. On April 30, 2018 the juvenile court sustained the allegations under section 300, subdivisions (b)(1) and (j).

On June 15, 2018 the Department removed Jade, Mark, and James from Mother's home and placed them with the paternal grandparents. On June 18 the Department filed a supplemental petition (§ 387) on behalf of Jade and Mark, alleging Mother violated juvenile court orders by allowing Father to have unsupervised visitation with the children in the home.^[2]On June 19 the juvenile court detained Jade, Mark, and James from Mother and continued their placement with the paternal grandparents. However, on June 29 the paternal grandparents stated they could not care for the children for personal reasons, and the children were placed in foster care.

After Ezekiel was born in January 2020, the Department placed him with his siblings in the same foster home. On February 3, 2020 the Department filed a petition on behalf of Ezekiel alleging, among other things, that Mother and Father had a history of engaging in physical altercations; Mother failed to protect Ezekiel and his siblings by allowing Father to reside in the home; Ezekiel's siblings were current dependents of the court; and Father had a history of substance abuse and abused prescription medication, amphetamine, methamphetamine, opiates, codeine, marijuana, and alcohol.

B. Visitation with Ezekiel Prior to the Disposition Hearing^[3]

On March 10, 2020 the Department reported that since Ezekiel was placed in foster care, Mother had only two visits, and Father did not visit because of the limited availability of monitors. In April Mother and Father started having monitored virtual visits with Ezekiel, Mark, and James because of the COVID-19 pandemic. Mother and Father asked the children questions and said they loved them.^[4]

Mother and Father had monthly in-person visits with Mark, James, and Ezekiel at a park starting in July 2020. The parents also had two monitored virtual visits with the three boys each week in which the parents tried to engage in conversation with Mark and James and sang songs to the children. Mark and James often refused to participate in the virtual visits and said negative things to the parents during the visits.

Starting in September 2020 Mother and Father had three-hour in-person visits once a month with the three boys. The parents visited with Mark and James on one day, and with baby Ezekiel on another. The monitor reported that during one of the visits with Ezekiel, the parents fed him baby food and formula, burped him, and changed his diaper. The visit was appropriate and went well. On another visit Mother and Father greeted Ezekiel affectionately and brought age-appropriate toys and a stroller to the visit. The parents gently laid Ezekiel down and talked to him, and they engaged in positive and developmentally appropriate activities with the baby. They later placed Ezekiel in the stroller and took a walk around the park. Afterward, they placed Ezekiel on his stomach for "tummy time" and encouraged him to crawl. Father later clipped Ezekiel's nails while talking to him in a soothing voice. The parents changed Ezekiel's diaper twice. The monitor reported Ezekiel appeared happy and comfortable with Mother and Father during the visit.

The parents continued to have monitored virtual visits with Mark, James, and Ezekiel in September 2020. Both Mark and James refused to appear on video camera during most visits. Mark was adamant he did not want visits with his parents, and he acted out by physically harming James. The parents said they loved and missed the boys, and they tried to converse with Mark and James. The parents also sang nursery rhymes and asked Mark and James to sing along. Mark and James did not engage with the parents, but Ezekiel would listen to the songs. In the October and November 2020 virtual visits, Mother and Father appropriately engaged with Ezekiel by praising him, asking him to repeat some words, reading books, and singing nursery rhymes to him. In a visit on October 13, Ezekiel waved to the camera. When Mother asked Ezekiel to say certain words such as "'dadda, momma,'" he mumbled a few words in response.

On October 15, 2020 Mother had a monitored two-hour inperson visit with Ezekiel in the park.^[5] Mother held Ezekiel, told him she missed and loved him, changed his diaper, and sang to him while changing him. Mother then took out a few toys, and Ezekiel crawled to her and the toys. Mother read a book to Ezekiel before pushing him on the swing for a few minutes. Mother then carried Ezekiel to a shaded area because she did not want him to get sunburned. With prompting from Mother, Ezekiel was able to say "hi" and "bye" and to wave his hand. According to a Department report, "Ezekiel was very attentive and happy."

C. The Jurisdiction and Disposition Hearings for Ezekiel

On October 19, 2020 the juvenile court sustained the allegations in Ezekiel's dependency petition under section 300, subdivisions (a), (b)(1), and (j). At the December 8, 2020 disposition hearing, the court declared Ezekiel a dependent of the court, removed him from the parents' physical custody, and denied family reunification services for the parents under section 361.5, subdivision (b)(10).

D. Visitation With Ezekiel After the Disposition Hearing

On December 22, 2020 Mother had a monitored visit with Mark, James, and Ezekiel at the park. Mother held Ezekiel while Mark and James ran around a fountain. Mother later placed Ezekiel in a stroller. Ezekiel "was quiet and looking around."

From December 2020 to March 2021 Mother and Father continued to have virtual visits with the three boys. During the visits, the parents sang nursery rhymes to Ezekiel. The parents also had monthly visits with Ezekiel, although Father missed four out of 11 visits. The parents were appropriate during the visits, and the caregiver did not report any concerns regarding Ezekiel's behavior after the visits. On August 10, 2021 the juvenile court ended the virtual visits but continued in-person visits.

In August 2021 the Department reported the parents had in-person visits with the three boys twice a month. The parents "showed their interest, eagerness, and concerns regarding visits." However,...