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

24 Cal.App.5th 511

239 Cal.Rptr.3d 493

IN RE C.A., a Person Coming Under the Juvenile Court Law.

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

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

D073229

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

Filed May 23, 2018

Certified for Partial Publication.^*

Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant, C.T.

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

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent.

IRION, Acting P. J.C.T. and D.A. appeal the juvenile court's order terminating C.T.'s parental rights to her minor daughter, C.A., and earlier orders finding the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq. ) did not apply to C.A.'s presumed father, D.A., or C.A.'s biological father, D.R. We reject these challenges and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On December 1, 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b),¹ after C.T. and C.A. tested positive for amphetamine and methamphetamine at C.A.'s birth. C.T. also tested positive for marijuana and admitted that she had used methamphetamine and other drugs during her pregnancy. At birth, C.T. reported that D.A. was C.A.'s father. At the detention hearing, the juvenile court appointed counsel for D.A. and C.A. The Agency's attorney, however, informed the court that D.A. was not C.A.'s biological father. As a result, the court deferred the issue of paternity to the next hearing. D.A. reported that he had Cherokee heritage, and the court deferred ICWA issues and ordered D.A. to complete the standard ICWA form. The court also added C.T.'s ex-boyfriend, D.R., to the petition as an alleged father. The court ordered C.A. detained and she was placed with a foster family.

At the December 22, 2015 jurisdiction and disposition hearing, the Agency recommended the juvenile court make a true finding on the petition, remove C.A. from C.T.'s care, and that C.T. participate in reunification services. C.T. contested the Agency's recommendations and the court set the matter for trial. At the contested jurisdiction and disposition hearing, the juvenile court adopted the Agency's recommendations, continuing C.A.'s placement in foster care. D.A. did not request to elevate his paternity status and, despite active efforts, the Agency had not yet located D.R. The juvenile court found ICWA did not apply without prejudice to D.R.

Once the Agency located D.R., it set a special hearing to establish paternity for C.A. At the March 22, 2016 special hearing, the court appointed counsel for D.R. D.R. told the Agency's social worker that he had been in a relationship with C.T. for a year and a half, believed he was C.A.'s biological father, and requested a paternity test. At the same hearing, D.A. requested reunification services because he and C.T. had recently married. The juvenile court ordered services and visitation to D.A., paternity testing for D.R., and set a special hearing for May 11, 2016, to address the test results.

The May 11, 2016 special hearing was continued because the Agency had not yet received D.R.'s paternity test results. After the test results confirmed D.R. was C.A.'s biological father, the court elevated D.R. to biological status at the continued special hearing. Due to D.R.'s extensive criminal and substance abuse history, severe mental health concerns, and lack of relationship with C.A., the Agency did not believe it was in C.A.'s best interest to offer D.R. services.

D.R. informed the court that although he thought he might have had Native American heritage through his biological father, he had since discovered that the man he thought was his biological father was actually not his father, and he did not have any Native American heritage.² Because D.R. withdrew his claim of Native American heritage, the juvenile court found ICWA did not apply. D.R. did contest the Agency's recommendation that he be denied reunification services and the court set the matter for trial.

At the July 13, 2016 trial, D.R. withdrew his request for services. For the six-month review hearing, which occurred at the same time, the Agency reported C.T. was participating in substance abuse treatment and was progressing with her recovery. Based on her progress with services, the Agency had also permitted C.T. to have unsupervised visits with C.A. D.A. was also participating in voluntary services, but had recently relapsed and had tested positive for methamphetamines. The Agency remained concerned about C.T.'s ability to protect C.A. if D.A. was not able to maintain his sobriety. As a result, the Agency recommended C.A. continue with her foster placement and that both C.T. and D.A. continue to receive reunification services. The court continued services for C.T. and D.A., and also elevated D.A. to presumed father status.

Before the 12-month review hearing, in August 2016, the Agency reported it was concerned with D.A.'s behavior, C.T.'s ability to set boundaries with D.A., and C.T.'s failure to regularly participate in recovery meetings. By October 2016, however, C.T. had started divorce proceedings, was attending all services, testing clean, and was voluntarily participating in therapy. Based on her progress, in November 2016, the Agency approved C.T. for overnight visitation. The Agency continued to have some reservations about C.T.'s relationship with D.A. and her ability to set boundaries with him. The social worker reported, however, that C.T. and C.A. had developed a healthy bond, noting that C.A. reached for C.T. and smiled at her during visits, and C.A. would become upset if C.T. left the room.

In December, C.T. began a 60-day trial visit and at the January 3, 2017 12-month review hearing, the Agency recommended placement with C.T. The Agency recommended termination of D.A.'s voluntary services because he had relapsed, testing positive for methamphetamine and failing to report for drug testing. He had also been arrested for theft, shoplifting and using false identification and was incarcerated. The Agency noted in its report that D.R.'s sister, Michelle N., had maintained communication with the Agency and C.T. since the beginning of the dependency proceeding and stood willing to take custody of C.A. if C.T.'s reunification efforts were not successful. At the review hearing, the court followed the Agency's recommendations, placed C.A. with C.T. and set a family maintenance review hearing date.

Then, in February 2017, the Agency learned C.T. had relapsed and had used methamphetamine while caring for C.A. Despite efforts by the Agency to safety plan with C.T., between February and April 2017, she missed multiple drug tests, tested positive for methamphetamine and alcohol, and failed to engage in drug treatment. As a result, the Agency filed a section 387 petition to again remove C.A. from C.T.'s custody.

At the April 18, 2017 detention hearing on the new petition, the juvenile court again removed C.A. from C.T.'s care and ordered supervised visits for C.T. The juvenile court set the matter for a jurisdiction and disposition hearing on May 9, 2017. By the time of that hearing, C.T. had entered inpatient treatment at the Family Recovery Center (FRC) and was working with a therapist to address concerns of her continuing codependence on D.A. Despite this progress, the Agency's social worker expressed concern in its report that C.T. had demonstrated poor judgement by contacting D.R. even though she had a restraining order in place because of past domestic violence.

C.T. visited C.A. twice a week at the FRC. The Agency reported that while C.A. often cried and would cling to the caregiver initially, she would eventually warm up to C.T. The Agency initiated an Interstate Compact on the Placement of Children (ICPC) evaluation for Michelle, who lived in New York and continued to express a willingness and commitment to adopt C.A. if C.T.'s reunification efforts failed. At the May 9, 2017 hearing, the Agency recommended termination of C.T.'s reunification services and that the court set a section 366.26 permanency planning hearing. C.T. set the matter for trial and requested C.A. be returned to her care.

In its report for the contested hearing, the Agency and C.T.'s therapist continued to express concerns about C.T.'s relationship with D.A., particularly her propensity to use drugs with D.A., and C.T.'s ability to protect C.A. from D.A. At the hearing, after the presentation of evidence including C.T.'s testimony, the juvenile court sustained the section 387 petition, terminated C.T.'s reunification services, and set a section 366.26 hearing for October 11, 2017.

Before the section 366.26 hearing, Michelle's ICPC was approved by the Agency and the court conducted a special hearing on July 19, 2017, to consider placement of C.A. with Michelle and her husband. Michelle and her family had begun regular video chats with C.A., and Michelle planned a visit to San Diego to facilitate placement of C.A. in her care. C.T. objected to placing C.A. out of state and set the matter for trial. At the August 11, 2017 contested special hearing, the juvenile court placed C.A. with Michelle in New York.

For the section 366.26 permanency planning hearing, the Agency reported that prior to C.A.'s placement with Michelle, C.T. was having generally appropriate visits with C.A. three times each week. The social worker reported that C.A. looked to her caregiver to have her needs met during the visits and that while C.A. was generally happy during visits with C.T., she was also happy when they ended. Once the court ordered C.A. placed with Michelle, C.T. abruptly left FRC, stopped attending drug court, and did not attend scheduled visitation with C.A....