Persons Coming Under the Juvenile Court Law. L. A. Cnty. Dep't of Children v. Pamela M. (In re Q.M.)

79 Cal.App.5th 1068

294 Cal.Rptr.3d 899

IN RE Q.M. et al., Persons Coming Under the Juvenile Court Law.

Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Pamela M., Defendant and Appellant.

B313171

Court of Appeal, Second District, Division 3, California.

Filed May 18, 2022

Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.

EDMON, P. J.

Pamela M. (mother) appeals from orders of the juvenile court terminating parental rights to two of her four children. Mother contends the juvenile court erred by finding that the Los Angeles County Department of Children and Family Services (DCFS) adequately investigated the children's possible Indian ancestry, as required by the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ) and related state statutes. We find no error, and thus we will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother and James M. (father) have four children: K.M. (born in Aug. 2006), James M. (born in Feb. 2008), Q.M. (born in April 2010), and P.M. (born in Dec. 2013). This appeal concerns only Q.M. and P.M.

A. Investigation and detention.

On October 22, 2015, DCFS filed a dependency petition alleging that the children came under the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code ¹ section 300, subdivisions (b) and (j). The petition alleged that K.M. had a psychiatric condition for which the parents failed to obtain necessary treatment (counts b-1, j-1); father had mental and emotional problems, including paranoid delusions, which prevented him from safely caring for the children (count b-2); and mother and father had failed to provide appropriate care and supervision of the children (counts b-3, j-2). The petition subsequently was amended to add additional counts alleging that K.M. had marks on his body consistent with having been hit with a switch (counts b-4, j-3), and mother and father had a history of arguments and physical altercations in the children's presence (count b-5).

The October 2015 detention report stated that the family had come to the attention of DCFS because nine-year-old K.M. had become catatonic and lost control of his movements. Because K.M.’s medical tests were normal, he had been transferred to the psychiatric unit at the UCLA Medical Center. The parents discharged K.M. after two nights against medical advice, stating that " ‘the devil’ " was in him and they would conduct an exorcism. UCLA staff reported that father had symptoms of paranoia and schizophrenia, as evidenced by his statements that he was in communication with President Barak Obama, First Lady Michelle Obama, and Attorney General Eric Holder, headed a large non-profit corporation, and was the head of the United States mafia. Mother said she would not encourage father to seek mental health services because " ‘that is the way he is.’ " Mother and father both told DCFS that ICWA did not apply.

On October 22, 2015, both parents completed and signed ICWA-020 forms. Mother stated that she had "no Indian ancestry as far as I know"; father stated he "may have Indian ancestry" through a Cherokee tribe.

At the October 22, 2015 detention hearing, the court ordered all four children detained from the parents and placed in foster care. When father heard that his children would be detained, he responded that he would leave the courtroom to take care of paperwork because "I deal with the President of the United States ... about the White House prophesy." After a break, the court noted that father "is in extreme distress and he is not responding to my questions." The court then asked father whether he had Indian ancestry; father did not respond, but his lawyer said father "indicated that he may have some Cherokee. I believe he has got family in Louisiana. They would probably best be able to tell us." The court asked father to provide his lawyer and the social worker with any information relevant to father's possible Indian ancestry, and it then found there was "reason to believe that this may be an ICWA case and [the court] is going to order the Department to do further investigation based upon [father's] responses to his [ICWA] questionnaire and the indication that family members in Louisiana may have more information about their Indian status."

B. Jurisdiction, disposition, and initial appeal.

A contested jurisdiction hearing took place in September 2016. The juvenile court dismissed two counts of the petition and sustained the remaining counts as amended. Subsequently, in January 2017, the juvenile court entered a disposition order requiring both parents to submit to Evidence Code section 730 evaluations, participate in individual counseling, and complete parenting classes and domestic violence programs.

Mother and father appealed from the jurisdiction and disposition orders, raising only ICWA issues. While the appeal was pending, the parties stipulated to a conditional affirmance and limited remand with directions to the juvenile court to order DCFS to further investigate father's claims of Cherokee Indian heritage and, if appropriate, to provide proper ICWA notice. This court accepted the parties’ stipulation and ordered a conditional affirmance and remand on June 23, 2017.

C. Additional ICWA inquiry; termination of parents’ reunification services.

On November 28, 2016, a dependency investigator contacted mother regarding ICWA. Mother said her family had no Indian ancestry. Mother then asked father about his family; father "replied that the family did not have any Indian American heritage and that he has said no before when he was asked that question."

On July 3, 2017, the juvenile court noted its receipt of the remittitur from the Court of Appeal and ordered DCFS to investigate father's claim of Cherokee heritage by interviewing the parents and any known relatives and providing ICWA notice to the appropriate tribes, the Bureau of Indian Affairs, and the Department of the Interior.

On August 31, 2017, the children's social worker (CSW) attempted to meet with the parents to have them sign an ICWA-020 form. However, the parents texted that they wanted to reschedule so they could first speak to their lawyers. They later sent the CSW the following text: " ‘Do Cherokee have anything to do with our children coming home. If so we don't want anything to do with that.’ " On September 5, 2017, mother told the CSW that " ‘the Indian ancestry came back negative.’ " When the CSW said she had to provide notice to the tribes if there was any possibility of Indian ancestry, mother said she and father would discuss it with their attorneys. The parents never again made themselves available to DCFS to discuss the family's possible Indian ancestry.

On November 3, 2017, father's counsel requested an expedited investigation into the suitability of placing the children with paternal aunt Reba M. in Louisiana. An address and telephone number for Reba were provided.

Sometime prior to March 2018, the parents moved to Louisiana, and later to Mississippi. Their last visit with the children was in October 2017, and they thereafter telephoned the children only intermittently.

Neither parent was present at the July 5, 2018 status review hearing.² Through their counsel, both parents objected to termination of family reunification services. The juvenile court found that the parents had made minimal progress towards alleviating the causes of DCFS's intervention, terminated the parents’ reunification services, and set a section 366.26 hearing for November 2018. With regard to ICWA, the court asked counsel whether either parent had contacted them regarding ICWA, and both counsel confirmed they had not. The court noted that the parents "are not cooperating with the Department with reference to the Department's efforts to get the ICWA-020 form and its information to send appropriate notice. So at this time, I am ordering the Department to notice the appropriate tribes as well as the Bureau of Indian Affairs and Secretary of Interior, and that notice must be done prior to any ... other hearings."

On August 16, 2018, DCFS filed a "Last Minute Information for the Court" repeating the details of the CSW's conversations with the parents regarding ICWA.

In November 2018, a CSW tried unsuccessfully to reach mother and father by calling numerous past or potential telephone numbers. Letters and blank ICWA-030 forms were mailed to five possible addresses for the parents but were not returned. On November 26 and December 21, 2018, and January 14, 2019, a CSW called a new telephone number for the parents and left messages, but she did not receive a return phone call.

On November 2, 2018, DCFS reported that the investigation into the possibility of placing the children with paternal aunt Reba had closed. A Louisiana social worker had been unable to reach Reba by telephone, and after numerous attempts she had gone to Reba's home in person. Reba was not home, but the social worker spoke to two men, one of whom said he lived in the home. The home was described as "cluttered and unkempt" and was deemed unsuitable for the children.

On December 21, 2018, DCFS reported that it had attempted to reach both parents at a variety of different phone numbers and had left messages where possible. It also had mailed ICWA forms to the parents at a variety of different addresses where DCFS believed they might be living. DCFS had not been able to make any contact with the parents to determine if ICWA applied, and it therefore requested that the court make an ICWA finding in order to allow adoption to proceed.

On January 9, 2019, the court ordered DCFS to continue to try to contact the parents regarding ICWA and asked the parents’ attorneys to encourage the parents to cooperate with DCFS's efforts to determine whether ICWA applied. Both counsel agreed to...