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

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In re G.S., A Person Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.S., Defendant and Appellant.

B322367

California Court of Appeals, Second District, Fifth Division

March 14, 2023

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No 20CCJP02740A Gabriela H. Shapiro, Judge Pro Tempore. Conditionally affirmed and remanded.

David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen D. Watson, Senior Deputy County Counsel, for Plaintiff and Respondent.

BAKER ACTING P. J.

The juvenile court assumed dependency jurisdiction over G.S (Minor) after sustaining allegations that her parents, B.S (Mother) and M.L. (Father), engaged in domestic violence and substance abuse. Termination of the parents' reunification services and, ultimately, parental rights ensued. Mother appeals from the parental rights termination order and we consider (1) whether the juvenile court erred in denying her change of circumstances petition without holding an evidentiary hearing, (2) whether the juvenile court erred in finding inapplicable the parental benefit exception to law otherwise requiring termination of parental rights, and (3) whether reversal is required because no sufficient inquiry was made into whether G.S. is an Indian child under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law.^[1]

I. BACKGROUND

A. The Department's Initial Investigation

In April 2020, the Department received a referral alleging recurring domestic violence between Mother and Father. Department social workers investigated by interviewing Mother, Father, and several other family members: maternal grandmother C.S. (Maternal Grandmother); maternal uncle A.S. (Maternal Uncle); paternal grandmother M.C. (Paternal Grandmother); and paternal step-grandfather M.S.

The Department learned Mother was seventeen years old when she gave birth to Minor, who was approximately 21 months old at the time dependency proceedings commenced. According to those interviewed, Mother and Father would frequently yell at each other, sometimes in Minor's presence. Not long before the Department began investigating, the parents fought in Minor's presence and Father broke Mother's cell phone. During an earlier fight in Minor's presence, Father broke Mother's bedroom window. In 2019, Mother hit Maternal Grandmother while she was holding Minor. Maternal Grandmother and Maternal Uncle told Department social workers that Mother and Father sometimes neglect to feed Minor, which forces other family members to ensure she is fed.

Mother admitted she and Father had verbal arguments, but she denied there had been any physical violence between her and Father or Maternal Grandmother. Father similarly admitted to arguing with Mother, but he stated they do not really argue in front of Minor. Father admitted he slammed Mother's phone on the floor during an argument. He also admitted to breaking Mother's window, but both he and Mother asserted it was an accident. Mother and Father each denied failing to feed Minor. Father admitted to smoking marijuana and drinking alcohol, but he asserted he had never been drunk or high around Minor.

During her first interview with the Department, Mother agreed to complete a 52-week domestic violence program, individual and family counseling, and a parenting program. Mother made arrangements to begin therapy in May 2020. Minor was removed from Father's custody that same month and released to Mother's care.

B. The Dependency Petition and Early Hearings

The Department filed a five-count dependency petition alleging Minor was at risk based on Mother and Father's domestic violence, Mother's violence against Maternal Grandmother, and Father's marijuana abuse. Shortly thereafter, Mother and Father both completed ICWA-020 Parental Notification of Indian Status forms and informed a Department investigator they did not have any Indian ancestry.

After the juvenile court held an initial detention hearing, the Department filed an ex parte application seeking to have Minor removed from Mother's care. The petition alleged Mother was in contact with Father, was allowing him to have unmonitored visits with Minor in Maternal Grandmother's home (in contravention of the orders made by the juvenile court at the detention hearing), was otherwise spending time with Father, and had terminated her counseling sessions. The juvenile court held a hearing, detained Minor from Mother, and released her to Maternal Grandmother. The court ordered monitored visitation for Mother of at least two times per week for two hours.

As of June 2020, Mother was enrolled in a parenting class and had restarted individual counseling. Maternal Grandmother reported Mother was visiting Minor twice a week for two hours. Father had not contacted Maternal Grandmother about any visits. Mother also later enrolled in a domestic violence course.

At a jurisdiction and disposition hearing in August 2020, the juvenile court sustained an amended count a-1 alleging Minor was at substantial risk of suffering serious physical harm inflicted non-accidentally by a parent, a count b-2 alleging Minor was at substantial risk of suffering serious physical harm from Mother's physical altercation with Maternal Grandmother, and a count b-3 alleging Minor was at substantial risk of suffering serious physical harm from Father's marijuana abuse. The court ordered Mother to participate in a domestic violence support group for victims, conjoint counseling with Father, parenting courses, and individual counseling to address anger management. Father was also ordered to participate in services, and Mother and Father were each granted monitored visitation with Minor.

C. Termination of Reunification Services

In the first review period following the court's assumption of jurisdiction over Minor, Mother fell out of contact with the Department for several months. By January 2021, Mother had attended visits with Minor monitored by Maternal Grandmother, but her attendance had become increasingly sporadic. Mother had also participated in a parenting program, but she had not received a completion certificate because her participation was minimal. She had enrolled in a domestic violence course and attended 14 victim support group sessions. She had not participated in conjoint counseling with Father because she did not want contact with him. Additionally, though Mother and Maternal Grandmother were referred to conjoint counseling, Mother did not appear for the first session. Mother also did not act on the Department's suggestion that she re-enroll in parenting and domestic violence classes.

At the 6-month review hearing, the juvenile court continued reunification services for Mother and set the matter for a 12-month review hearing.

In July 2021, the counselor conducting conjoint counseling reported Mother had only attended two or three sessions.^[2]According to the counselor, Mother's lack of participation was getting in the way of bonding with Minor and learning skills to address Minor's needs. The counselor also reported Minor routinely experienced an increase in anxiety during and after visits with Mother, which resulted in increased tantrums, biting, screaming, and crying. Mother's apparent lack of respect for Maternal Grandmother also had a negative effect on Minor and heightened her anxiety.

As of September 2021, Mother's visitation with Minor was inconsistent. Mother attended some visits, but she sometimes missed visits without advance notice, showed up late, or left early. She was often on her phone during visits and would sometimes go the majority of a visit without engaging with Minor. A Department social worker observed Minor refer to Mother by her given name during a visit, and observed that Minor sought out Maternal Grandmother when she needed assistance or wanted attention.

Mother had also made minimal progress with her case plan. She reenrolled in a domestic violence support group in July 2021 but she delayed attending. Mother joined the waiting list for another parenting class, but she had not completed the intake process or attended classes. She was enrolled in individual counseling, but she had not enrolled in conjoint counseling with Father, whose whereabouts were unknown.

At a review hearing in October 2021, the juvenile court found the parents' progress toward alleviating the conditions that necessitated placement was not substantial. It terminated reunification services and ordered the Department to provide permanent placement services to Minor.

D. Developments Following the Termination of Reunification Services and Termination of Parental Rights

Following termination of reunification services, Maternal Grandmother petitioned to adopt Minor. Mother was visiting Minor approximately once per week. A Department social worker observed a visit between Mother and Minor in November 2021 during which Minor hugged Mother, and the two sat at a table and read books together. Mother appeared attentive to Minor and interacted with her appropriately. Maternal Grandmother reported that during other visits Mother would sometimes become impatient with Minor and yell when she did not listen.

In July 2022, Mother filed a change of circumstances petition requesting reinstatement of reunification services. Mother represented she had completed a domestic violence class, she had been visiting with Minor four to five times per week and the visits were going well, and she was pursing counseling. Mother sought an additional six months of reunification...