L. A. Cnty. Dep't of Children & Family Servs. v. Iisha A. (In re Ciara D.)

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In re CIARA D., a Person Coming Under the Juvenile Court Law.

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

B321872

California Court of Appeals, Second District, Seventh Division

May 1, 2023

NOT TO BE PUBLISHED.

APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. 20CCJP05692 Stephen C. Marpet, Juvenile Court Referee.

Zaragoza Law Office and Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant Iisha A.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Jjuan N.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.

FEUER J.

Iisha A. (Mother) and Jjuan N. (Father) appeal from the juvenile court's order terminating their parental rights over 11-year-old Ciara D. under Welfare and Institutions Code section 366.26.^[1] Mother and Father contend the Los Angeles County Department of Children and Family Services (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. In addition, Father appeals from the court's order summarily denying his section 388 petition which sought a finding Father was the presumed father and an order granting him reunification services.

We agree the juvenile court abused its discretion in summarily denying Father's section 388 petition because the court ignored Father's new evidence, and the court's factual findings were not supported by substantial evidence. We also agree the Department and the juvenile court erred in failing to comply with ICWA's inquiry and notice provisions, and the error was prejudicial. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Referral, Petition, and Detention

On September 14, 2020 the Department received a referral alleging Mother used cocaine and methamphetamine, had recently been involuntarily hospitalized for mental illness, and generally neglected then-nine-year-old Ciara by leaving her in the care of maternal grandmother, Jerri A., for days or weeks at a time. During these absences, Mother left Ciara without any food in the house. Further, Mother and Jerri used drugs in the presence of Ciara, and Ciara was at risk of sexual abuse by Jerri's significant other, Roger, in whose home Ciara, Mother, and Jerri resided.

On September 23 a social worker interviewed Jerri, who reported Ciara and Mother had recently moved to California from Kansas. Jerri did not know the identity of Ciara's father. Ciara told the social worker her father lived in Atlanta, Georgia, but Ciara did not have any recent contact with him. Ciara denied she was ever left home alone without an adult, lacked food, or suffered sexual abuse.

On October 8, 2020 the Department received a second referral alleging Mother had been away for at least a week and Ciara had been seen in a trailer in downtown Los Angeles with her stepfather Glen D. and a group of people "who were about to use crack." Glen stated Mother "was nowhere around" and "they thought [Mother] was coming back that night but she did not return."

On October 23 the Department filed a dependency petition on behalf of Ciara alleging Mother's failure to protect Ciara under section 300, subdivision (b)(1). On October 26 Ciara was placed with maternal cousin Tamara B. At the October 29 detention hearing, Mother provided Father's name and date of birth and indicated he lived in Georgia. Mother stated she did not have Father's telephone number or email address. Although Father's name did not appear on Ciara's birth certificate, Mother stated Father's biological paternity as to Ciara had been established by a blood test. The court found Father was an alleged father and ordered the Department to perform a due diligence search for him. The court detained Ciara from her parents.

B. Notices to Father, Jurisdiction and Disposition Hearing, and Review Hearings

On November 28, 2020 the Department sent a copy of the petition and notice of a January 12, 2021 hearing to Father at three last known addresses: one in Ohio and two in Georgia, including at 3452 River Mill Lane in Ellenwood, Georgia (River Mill address). The Department filed certified mail receipts showing the notices were sent to Father at the three addresses and submitted a due diligence report summarizing its efforts to contact Father.

On December 9, 2020 (with Mother present but not Father), Mother entered a no contest plea to the amended allegations, which the juvenile court sustained, that Mother had a history of substance abuse including cocaine and ecstasy and was a current abuser of marijuana, and Mother had untreated mental and emotional problems including a diagnosis of paranoid schizophrenia with bipolar disorder.^[2] The court declared Ciara a dependent of the court and removed her from Mother's physical custody. The court granted Mother two monitored visits a week for two hours each visit. The court ordered family reunification services for Mother but none for Father because he was an alleged father.

On March 4, 2021 the Department mailed notices of a March 10 review hearing to the same addresses for Father in Ohio and Georgia (including the River Mill address), but Father again did not appear at the hearing. On May 24 the Department mailed notices of the June 9 six-month review hearing and the Department's report to Father at the Ohio and Georgia addresses. However, the May 24 notice sent to Father at the River Mill address was incorrectly addressed to 33425 River Mill Lane, and it was returned to sender. Notices sent to the (correct) River Mill address on May 7 and 14 were also returned. On June 1 the Department mailed notices to the two last known Georgia addresses for Father, including the River Mill address, and it filed an updated declaration of due diligence. Father did not appear at the June 9 six-month review hearing.

On November 24, 2021 the Department mailed notice of the December 8 12-month review hearing to the River Mill address, but the notice was erroneously sent to 3425 River Mill Lane (instead of 3452). On December 6 the Department resent notices to Father at the two Georgia addresses (including one correctly addressed to 3452 River Mill Lane), two Texas addresses, and a Los Angeles address. The juvenile court continued the 12-month review hearing to January 20, 2022. Father did not appear at the January 20 hearing.

At the January 20, 2022 hearing, the juvenile court found Mother was not in substantial compliance with her case plan, terminated Mother's family reunification services, and set a selection and implementation hearing (§ 366.26) for May 16, 2022.

C. Father's Appearance

On February 14, 2022 Father telephoned social worker Jason Sanchez and provided Sanchez with his phone number and River Mill address. Father also provided a phone number for the paternal grandmother. Sanchez directed Father to contact Los Angeles Dependency Lawyers and request an attorney. Dependency investigator Elizabeth Pascual attempted to contact Father by phone, text message, and email on February 17 and 23, but she received no response. On February 17 Pascual spoke with the paternal grandmother, who stated she lived with Father at the River Mill Lane address. Pascual told paternal grandmother to watch for a letter by certified mail for Father. However, the letter was returned as undeliverable on March 30, 2022. The same day Pascual tried unsuccessfully to speak with Father by phone and text. However, Pascual spoke by phone with paternal grandmother, who confirmed the address was correct but "they are not always home, and that when a note is left by the post office to pick up mail, it never specifies which post office to go to," and there were several in the area.

On April 27, 2022 Pascual spoke with Father and paternal grandmother by phone. Father confirmed he had received the notice Pascual resent to Father by first class mail. Paternal grandmother indicated Ciara had lived with Father and paternal grandmother on two occasions, once for around two months and once for "an entire summer." Father and paternal grandmother last saw Ciara about three years earlier. Father and paternal grandmother had tried to locate Ciara and "even traveled to California to an address provided by the mother, but they did not find Ciara." Father wanted to participate in the case and wanted custody of Ciara. Pascual encouraged Father to contact Los Angeles Dependency Lawyers and request an attorney.

Sanchez reported Ciara had mentioned visiting Father "for a couple of summers, but [Mother] did not allow her to visit often." While Ciara strongly preferred to stay with Tamara, Ciara expressed an interest in visiting with Father.

The Department's May 4, 2022 status review report stated Ciara was comfortable in her placement and had made significant progress in improving her academic performance. The social worker observed Ciara to be well bonded with and cared for by Tamara. Ciara expressed interest in Tamara adopting her and feared returning to live with Mother. Ciara "appeared concerned about the possibility of her father becoming involved in the case." During a March 2022 mental health assessment, the therapist observed Ciara "displays minor temperamental concerns and appears fearful and concerned believing she may have to live with her father or mother."

On May 16, 2022 (the day of the selection and implementation hearing), Father filed a statement regarding parentage in which he requested a judgment of parentage. Father stated Ciara lived with him from May...