San Bernardino Cnty. Children & Family Servs. v. K.S. (In re R.H.)

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

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. K.S. et al., Defendants and Appellants.

E079932

California Court of Appeals, Fourth District, Second Division

May 26, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. J283368. Steven A. Mapes, Judge. Affirmed.

Janelle B. Price, under appointment by the Court of Appeal for Defendant and Appellant S.H. (father).

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant K.S. (mother).

Tom Bunton, County Counsel and David Guardado, Deputy County Counsel for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Both parents, father S.H. and mother K.S., appeal from a judgment declaring their son R.H. a dependent child pursuant to Welfare and Institutions Code, section 300, subdivision (b)(1)^[1], for untreated drug abuse, domestic violence and concealing the child's whereabouts, removing him from the physical custody of his parents, and bypassing reunification pursuant to section 361.5, subdivisions (b)(10), (11) and (15). The child came to the attention of the San Bernardino County Children and Family Services (CFS or Department) when his younger sibling was born with methamphetamine in her system, and she was taken into protective custody in the hospital. A detention hearing took place, resulting in a temporary order removing R.H. and placing him in the temporary custody of CFS. The parents concealed R.H.'s whereabouts from CFS for two years, by which time the younger child had been freed for adoption. The petition related to R.H. was reactivated, true findings were made on the allegations of the petition, and R.H. was removed from custody of the parents. The court denied reunification services to the parents, and they appeal.

On appeal, both parents challenge (1) the sufficiency of the evidence to support the jurisdictional findings, (2) the removal of the child from parental custody, (3) the denial of reunification services, and (4) whether CFS conducted an adequate inquiry under the Indian Child Welfare Act (ICWA).^[2]

Background

Father and mother have two children between them, a baby girl born in 2019, and a son, R.H., born in 2016. The baby girl was born prematurely with methamphetamine in her system, and mother tested positive for the drug at the time of giving birth. Mother left the hospital against medical advice and the parents left the infant in the hospital for two days resulting in the intervention by CFS before the infant was discharged. The petition also included allegations of risk to R.H. based on the parents' drug use, the father's criminal history, and the fact mother's whereabouts and willingness to parent were unknown because attempts to locate her were unsuccessful and she left no provision for the child.

At the detention hearing held on December 4, 2019, mother was present and indicated the minor R.H. was with father who did not appear. The court ordered that R.H. be detained and placed in temporary custody of CFS, and signed the detention warrant. The court asked mother about Indian ancestry, and mother denied any Native American heritage, executing the ICWA-020 form. The newborn was ordered detained in the hospital. Father was at the hospital when he was served with the warrant, and reacted by throwing the paperwork at the social worker's feet and yelling obscenities at her.

When the social worker attempted to investigate the allegations, mother informed the worker that she was living in a motel in Redlands while the baby A.H. was hospitalized, but there was no record of her being registered at that motel or another motel with a similar name. When the social worker located father, he refused to allow her entrance, refused initially to provide identifying information (though he later complied), and while he informed her that he had adequate provisions for the baby and for R.H., he refused to permit the social worker to see them. When the social worker suggested he take a photo of the provisions with his cell phone, he made a feeble excuse, so the social worker suggested he use his mother's phone, but he refused to ask her because his mother did not like CFS. He continuously denied using any drugs or alcohol, despite having a criminal record involving drug offenses, and despite losing custody of an older child due to his drug use.

The detention report also reflects that when the social worker served father with a copy of the detention warrant, he became angry, yelling at the social worker and throwing the paperwork on the floor. On November 27, 2019, the infant A.H. was detained in the hospital pending her discharge. When the social worker, along with a peace officer, attempted to locate R.H. at father's home, the paternal grandmother informed them father was not present and R.H.'s whereabouts were unknown. The report also indicated the social worker performed a risk assessment as a pre-placement preventive service. To this end, the social worker had consulted with a supervising social service practitioner, along with another social worker who had been involved in the case, in which consultation it was concluded that R.H. was at significant risk of neglect and abuse due to the parents' substance abuse issues, their lack of cooperation with the Department and their evasive conduct, but that exigent circumstances were not present so a warrant would be required. The report also listed the suggested services and referrals which could prevent further detention or facilitate return of the children

At the detention hearing of December 4, 2019, mother appeared, but father did not. R.H. was temporarily removed from the parents' custody and placed in the temporary care of CFS. The court signed the detention warrant in open court after making findings of substantial danger to R.H.'s physical and emotional health and that reasonable efforts had been made to prevent detention. The court also ordered CFS to provide services to the family pending development of the case plan and ordered visitation.

After the detention hearing and the service of the protective custody warrant on father, the social worker was unable to locate father to interview him for the jurisdictional report and hearing. A jurisdiction/disposition report was filed on December 26, 2019, in which a statement mother made to the social worker included an admission she used methamphetamines recreationally, and indicated she used weekly while she was pregnant with A.H. On December 13, 2019, father contacted the social worker in an agitated state and told her that R.H. was in his care and that he would not allow R.H. to be taken into custody. However, father refused to cooperate in order to initiate pre-dispositional services.

The jurisdiction report also indicated that father contacted the social worker to locate the placement of the baby, A.H., and informed the social worker that R.H. was with him, but that father would not disclose the location. When the social worker suggested he cooperate so that reunification services could be initiated, father again expressed his refusal to cooperate and hung up on the call. A few days later the social worker called father to complete the interview, and again encouraged father to cooperate with the Department, but father yelled at the social worker about the cruelty of separating families and hung up again.

On December 17, 2019, a concurrent planning assessment of the infant A.H. indicated she was adoptable and that an adoptive home would need to be recruited. The assessment cited as reasons the fact the child was born with methamphetamine in her system, and the parents were not visiting her. On January 2, 2020, the date originally set for the jurisdiction hearing, neither parent appeared. The court ordered R.H. detained upon his whereabouts becoming known and continued the jurisdiction hearing as to him. It also declared the sibling, A.H., to be a dependent child upon a true finding on all allegations of the petition except for the allegation under section 300, subdivision (g), removed custody of A.H. from parents' custody, found that ICWA did not apply, and ordered family reunification services (FRS) respecting that child.

On March 2, 2020, father appeared at the further jurisdiction hearing, but mother did not appear, and the child was reportedly with mother at the time. Father denied the allegations of the petition at that time and informed the court he would not produce the child because it would be too traumatic for the child. When asked by the court, father indicated he had no Indian ancestry, and he executed an ICWA-020 form to that effect. Father also provided a residence address to the court and agreed to submit to a drug test. However, father never reported to the testing site for a drug test, and the parents were still actively hiding R.H., as a consequence of which, the court held an order to show cause hearing where county counsel indicated CFS had filed the missing person's report and now planned to refer the case to the district attorney's office.

At this point, the parents began playing a sort of shell game with CFS, where the father would tell the social worker the child was with the mother, or had moved out of state, and the mother likewise misled CFS as to the whereabouts of R.H relatives were similarly unhelpful in locating either the parents or R.H. CFS filed a missing person's report and followed up with the Child Abduction Unit of the Office of the San Bernardino County District Attorney. On January 2, 2020, mother appeared at the continued hearing where jurisdiction was declared over the infant sibling of R.H., she was removed from parental custody, and...