San Diego Cnty. Health & Human Servs. Agency v. C.S. (In re A.S.)

28 Cal.App.5th 131

239 Cal.Rptr.3d 20

IN RE A.S. et al., Persons Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.C.S. et al., Defendants and Appellants.

D073561

Court of Appeal, Fourth District, Division 1, California.

Filed October 3, 2018

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant C.S.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant T.F.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.

AARON, J.

This appeal arises from the juvenile court's selection of a tribal customary adoption as the permanent plan for minors A.S. and E.S. and the corresponding award of full faith and credit to the tribal customary adoption order. C.S. (Father) and T.F. (Mother) appeal the court's orders, contending that their due process rights were violated by the failure of the tribe to consider evidence from the parents in developing a tribal customary adoption order and by the court's exclusion of evidence at the Welfare and Institutions Code section 366.26 hearing. For the reasons explained below, we affirm the juvenile court's orders in their entirety.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2013, the San Diego County Health and Human Services (the Agency) removed minor Aa.S. from Mother and Father's home after Aa.S. witnessed a domestic violence incident between her parents.¹ At some point, Aa.S. was returned to Mother's custody. A.S. was born in October 2014 to Mother and Father. Following another domestic violence incident in January 2015, Aa.S. and A.S. were removed from Mother's home. The Agency filed a Welfare and Institutions Code section 300² petition regarding A.S. on February 4, 2015, following her exposure to violent confrontations between the parents involving the use of physical force. At the related detention hearing, the court found C.S. to be A.S.'s presumed father, issued a permanent restraining order against him, and returned Aa.S. and A.S. to Mother's custody.³

A. Removal from Father's Custody

At the April 17, 2015 contested adjudication and disposition hearing, the court sustained the section 300 petition and made a true finding that A.S. was a person as described under section 300, subdivision (b). The court removed A.S. from Father's custody under section 361, subdivision (c) and placed A.S. with Mother.⁴

On December 4, 2015, Mother filed a section 388 petition to terminate the restraining order against Father. After hearing arguments from Mother, Father, and the Agency, the court denied Mother's motion. In January 2016, the court modified the restraining order to allow peaceful contact between the parents outside the children's presence and at medical and school appointments and public events, but continued to prohibit Father from being at Mother's home while the children were present. The court continued A.S.'s placement with Mother, and ordered family maintenance services for Mother and enhancement services for Father. The court ordered Father to follow his case plan, attend A.A. meetings, and participate in a domestic violence class.⁵

B. Removal from Mother's Custody

E.S. was born to Mother and Father in March 2016. Mother did not inform the hospital of the restraining order, and Father was present at the birth; he also visited throughout the hospital stay. When confronted by the social worker later about Mother and Father being together in the presence of the children, the parents acknowledged the existence of the restraining order, but maintained that it did not prohibit their having contact with each other while the children were present.

Minors' counsel filed a section 388 petition on May 10, 2016, alleging that the parents were out of compliance with the restraining order. At a special hearing that day, the court ordered that A.S. be detained outside Mother's home. The Agency filed a section 300 petition on May 13, regarding E.S., and the court issued a protective custody warrant the same day. On May 16, at the detention hearing for E.S., the court found C.S. to be the presumed father and ordered E.S. detained outside her parents' homes. The Agency also filed a section 387 petition regarding A.S. on May 20, alleging that Father had visited the home intoxicated, while the children were present, and Mother had called the police because of Father's belligerence. At the detention hearing for A.S. on May 23, 2016, the court found that A.S.'s removal was necessary.

C. Indian Child Welfare Act

The contested adjudication and disposition hearing for both children was initially set for July 15, 2016. However, the hearing was repeatedly continued to address claims of Indian heritage, pending the outcome of Indian Child Welfare Act (ICWA) notifications. In December 2016, the Mesa Grande Band of Mission Indians (the Tribe) expressed interest in intervening in the case, and the Tribe formally sent a letter in January 2017 that stated that the Tribe "recognize[d] and consider[ed] each child ... be afforded the protections under ‘Indian Child’ under ICWA."⁶ Mother and Father continued to live together throughout this time, at least sporadically.

At the February 3, 2017 contested adjudication and disposition hearing, the court found that the minors were Indian children as defined in the ICWA, 25 U.S.C. section 1903(4). Because the children were under the age of three at the time they were removed from their parents' custody, the parents were given six months to make substantive progress in their plans.⁷

D. Termination of Reunification Services

On September 5, 2017, the court found by a preponderance of the evidence that returning the children to their parents would create a substantial risk of detriment to the children's physical and emotional well-being. The court also found that there was not a substantial probability that the children would be returned to their parents' physical custody within an extended period of time. The court ordered reunification services terminated. The court also ordered permanent placement under section 361.2, subdivision (e) and found by clear and convincing evidence that the Agency had complied with the case plan to make active efforts to return the children to a safe home, as required by section 361.7. The court reaffirmed the terms of the restraining order and continued visitation between the minors and the parents. The court set a hearing date to select a permanent placement plan for the minors, as required by section 366.26.

E. Section 366.26 Report

In its January 3, 2018 section 366.26 report, the Agency recommended tribal customary adoption as the permanent plan for the children, with placement with the current caregivers, with whom both children had been residing, together with their older sister, since January 21, 2017. The Tribe agreed. In this report, the Agency noted that Mother had visited the children consistently and that Father had, as well, until recently. The Agency commented that the children "share a good relationship with their parents" and "appear comfortable at visits"; it also noted that the children "have no issue separating when visits are over," and stated that the children have a special need for permanency.

F. Mother's Section 388 Petition

On February 2, 2018, Mother filed a section 388 petition pertaining to both children. Mother attached to the petition information about her therapy, her lease, and visitation narratives. Mother sought six more months of services.

At the February 7, 2018 hearing on this request, the court found that Mother had not met her prima facie burden.

G. Section 366.26 Hearing

In the February 16, 2018 addendum report, the social worker reported that A.S. did not want to go with the social worker to visit her father, and that when she returned from those visits, she exhibited behavioral issues. The report also noted that Father was appropriate in his visits with the children, but sometimes arrived unprepared, gave the children sugary snacks, or was distracted from the children by communications with professionals involved in the case. The report stated that the Agency's social worker had been informed by the tribal social worker that the tribal social worker had spoken with Mother about the Tribe's adoption recommendation. The Agency continued to recommend tribal customary adoption, noting that the parents had not shown the ability to maintain a safe home environment, free from domestic violence.

Prior to the contested section 366.26 hearing, minors' counsel filed a motion in limine seeking to narrow the issues to be determined at the hearing. The motion argued that in the case of an Indian child, the issues that the juvenile court is to consider at the 366.26 hearing are limited to adoptability and whether tribal customary adoption would be detrimental to the minors.

Though Mother's attorney sought some leeway in the permissible scope of Mother's testimony so that Mother would have the opportunity to express her feelings and discuss how visitation was going, both Mother's attorney and Father's attorney concurred with the analysis in the motion in limine, confirming that the law requires a showing of detriment to the children from the selection of tribal customary adoption as the permanent plan in order to render tribal customary adoption inappropriate. Father's attorney told the court that he believed the motion in limine accurately summarized the applicable law.

Mother testified at the February 16, 2018 hearing that she had not been given an opportunity to provide information to the Tribe regarding her progress with her services. She explained that she wanted the Tribe to know that she had completed domestic violence classes and therapy, and that she had healed. She also testified that she opposed the tribal customary adoption because she wanted to raise her children herself. She told...