Del Norte Cnty. Dep't of Health & Human Servs. v. J.H. (In re J.H.)

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In re J.H., a Person Coming Under the Juvenile Court Law.

DEL NORTE COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. J.H., Defendant and Appellant.

A168901

California Court of Appeals, First District, Third Division

June 17, 2024

NOT TO BE PUBLISHED

(Del Norte County Super. Ct. No. JVSQ-2016-6128)

Petrou, J.

Defendant J.H. (mother) appeals from an order under Welfare and Institutions Code^[1] section 366.26 selecting a tribal customary adoption as the permanent plan for the minor, an Indian child.^[2] She also contends the court erred in denying her request for a continuance of the section 366.26 hearing. We affirm.

Background

The pending dependency matter has been ongoing since 2016, when the then-two-year-old minor and her siblings were detained due to their parents' ongoing domestic violence and substance abuse.^[3] J.H. was initially successful with her case plan, and in 2017 the minor and her siblings were returned to J.H.'s care. The minor and her siblings were again detained in 2018 and, thereafter, J.H. struggled to meet her case plan. She had repeated positive drug tests and the Del Norte County Department of Health and Human Services (the department) reported J.H. utilized visitation to undermine the foster families and reunification efforts. J.H.'s visitation with the minor was terminated in 2020 and the court ordered a permanent plan of legal guardianship for the minor.

Throughout the course of the dependency, the minor struggled with her mental health and often displayed intense and lengthy behavioral outbursts. As a result of these struggles, the minor transitioned through ten foster homes before her final placement. In 2023, her eleventh foster family and the minor informed the department they desired a more permanent plan of adoption. The department and the Yurok Tribe (Tribe) recommended to the court a tribal customary adoption, a unique permanent plan option for Indian children which provides the permanency of adoption without requiring the termination of parental rights. The court identified tribal customary adoption as the minor's permanent plan, and J.H. challenges that order on appeal.

Initial Petition

In May 2016, the department filed a petition alleging the minor came within the jurisdiction of the juvenile court under section 300 based on her parents' history of domestic violence and substance abuse. At the detention hearing, a representative from the Tribe was present, and the minor was identified as an Indian child under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA). The court found the petition true and, following a period of reunification services, returned the minor to J.H.'s custody with family maintenance services, which included in relevant part ongoing mental health services and ongoing drug testing.

During the period of family maintenance services, J.H. was arrested for a domestic violence incident with the father. Shortly thereafter, she was evicted for unsanitary living conditions. The department also received reports of unsanitary living conditions at J.H.'s temporary home, drug use by the parents and the minor's half-siblings, and additional acts of domestic violence.

In light of the drug use allegations, the court ordered J.H. to take a hair follicle test. She refused to do so, but submitted to a urine test, which was positive for methamphetamine. J.H. continued to struggle with substance abuse and admitted using substances to cope when "overwhelmed and stressed."

Second Petition

In December 2018, the department filed a supplemental petition based on J.H.'s chronic substance abuse and failure to comply with mental health services. The court again ordered the minor detained. The court sustained the petition and found that the previous disposition had not been effective.

A contested disposition hearing was held over multiple days in March and April 2019. At that time, the Tribe formally intervened in the dependency proceedings. The Tribe asserted J.H. was entitled to services and "active efforts" had not been made to avoid the breakup of an Indian family as required by ICWA. Conversely, the department recommended services be terminated for J.H. and requested the court schedule a section 366.26 hearing to select and implement a permanent plan for the minor.

Following the hearing, the court found by clear and convincing evidence that "active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of this Indian family," and those efforts were unsuccessful.^[4] The court also found J.H. had received more than 18 months of court-ordered services, the maximum allowed under the Welfare and Institutions Code, and "further reunification services would not be in [the minor's] best interests." The court set the matter for a section 366.26 hearing to determine a permanent plan for the minor.

At the time of the section 366.26 hearing, minor was residing in a "nonrelated, non-tribal Resource Family Approved home." The department requested the minor remain in her placement until an appropriate guardian could be identified and the Tribe agreed with this recommendation.

Following the section 366.26 hearing, the court ordered a permanent plan of legal guardianship. The court also terminated J.H.'s visitation as "detrimental to the [minor's] physical or emotional well-being."

Post-Permanency Proceedings

The court held numerous post-permanency hearings to locate an appropriate placement for the minor. As noted in an application for psychotropic medication for the minor, the minor lost numerous placements due to aggression, sexually inappropriate behavior, and learning challenges.

At an October 2020 post-permanency review, the minor's Court Appointed Special Advocate (CASA) recommended the minor remain in her then current out-of-county resource home. The minor, who was seven years old at the time, was in her sixth placement within a five-year period. The Tribe's social worker agreed with the recommendation-even though the minor was not supported in connecting to her racial and ethnic heritage- because the focus was on stabilizing the minor's behavioral issues.

In advance of the 18-month post permanency review hearing, the department again recommended the minor remain in her current placement until a guardian could be identified. The court subsequently adopted these recommendations, finding "[t]he plan of placement in foster care with a permanent plan of legal guardianship is appropriate and ordered."

In advance of a June 2021 post permanency review hearing, CASA recommended the minor be adopted by her then-current foster parent, who indicated a desire for a tribal customary adoption of the minor. While the foster parent was not an ICWA preferred placement, the Tribe was consulted and agreed due to the minor's individualized and special needs. Pursuant to the department's recommendation for a new section 366.26 hearing to select and implement a revised permanent plan, the court scheduled a new hearing and noted the existing permanent plan may no longer be appropriate. After the hearing was scheduled, the foster parent requested the minor be placed in another home due to extreme behavioral outbursts.

The minor then transitioned between multiple new placements. At the time of its September 2021 report, CASA noted the minor then eight years old, was in her tenth placement since being detained five years earlier. The department reverted to its prior recommendation of out-of-home placement until a legal guardian could be identified. The court thus vacated the section 366.26 hearing and continued the prior placement order.

In advance of a November 2021 status review hearing, the department stated the minor's new placement was interested in a tribal customary adoption. However, the department recommended the court maintain the current placement order. The court agreed with the department and did not revise the existing placement order.

Another review hearing was scheduled for April 2022. The department recommended the minor's permanent plan be an out-of-home placement until a legal guardian or adoptive parent could be identified. The minor's placement continued to express an interest in a tribal customary adoption. CASA recommended the minor remain in her then-current placement with a revised permanent plan of tribal customary adoption.

At the review hearing, J.H. stated she had not seen the minor for over two years, wanted the minor returned to her custody, and "[the] system has messed my kids up." The Tribe submitted on the matter. The court continued the minor's placement and identified the permanent plan as "Legal Guardianship or Tribal Customary Adoption, once a legal guardian or adoptive home is identified."

In advance of a November 2022 status review hearing, CASA noted the minor had again changed placements and was in her eleventh placement in six years. As with the two prior placements, this placement indicated an interest in exploring a tribal customary adoption. Both CASA and the department recommended the minor remain in her current placement with no change to the existing placement order. The court adopted these recommendations and ordered the minor to remain in her current placement with no change to the permanent plan.

In April 2023, CASA noted both the existing placement and the minor were interested in adoption, and it recommended the minor's existing placement be provided with information about a tribal customary adoption. It requested the Tribe's social worker offer recommendations about possible support for out-of-county placements. The department requested the court set a new section 366.26 hearing because the current placement expressed a desire to...