San Diego Cnty. Health & Human Servs. Agency v. S.H. (In re Z.H.)

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In re Z.H. et al, Persons Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.H., Defendant and Appellant.

D080815

California Court of Appeals, Fourth District, First Division

February 17, 2023

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of San Diego County No J520024A-B, Browder A. Willis III, Judge. Affirmed in part conditionally reversed in part, and remanded with directions.

Anna Rak, under appointment by the Court of Appeal, for Defendant and Appellant S.H. (Mother).

Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.

O'ROURKE, Acting P. J.

Mother appeals from the juvenile court's orders terminating her parental rights to her minor children, Z.H. and Zi.H pursuant to Welfare and Institutions Code^[1] section 366.26. She asserts that the juvenile court erred in finding the beneficial parent-child relationship exception did not apply to preclude the termination of her parental rights, and she contends she was not properly noticed of the two continued section 366.26 permanency hearings. Mother also raises but then abandons her position that the juvenile court and Agency did not comply with their inquiry duties under the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.).

As explained below, we conclude the court did not err by finding the beneficial parent-child relationship exception inapplicable. And, although we agree that Mother was not properly noticed of the final continued section 366.26 hearing, we conclude the error was harmless. Even so, because our review indicates the inquiry required by ICWA was inadequate and that this error was prejudicial, we conditionally reverse the orders terminating parental rights and remand for the limited purpose of compliance with ICWA. FACTUAL AND PROCEDURAL BACKGROUND

Juvenile Dependency Petitions

In April 2019, the San Diego County Health and Human Services Agency (the Agency) received a referral when 12-week-old Z.H. was hospitalized for "failure to thrive" due to dangerous malnourishment. Z.H. was severely underweight and had not received medical care since her birth in January. Mother fed Z.H. almond and muscle milk, and despite being 12 weeks old, Z.H. looked like a newborn. The reporting party indicated that the hospital educated Mother about Z.H.'s feeding sche dule, but Mother did not follow the schedule without someone directing her. Despite being given whole milk to feed her 18-month-child, Zi.H., Mother was observed putting coffee creamer packets into Zi.H.'s bottle. Hospital staff also saw Mother and her boyfriend eating the food that the nursing staff provided for Zi.H. Mother and her boyfriend were overheard calling Zi.H. "retarded" and "idiot" and threatening to put Zi.H. outside if he did not "shut up."

The Agency filed juvenile dependency petitions on behalf of Z.H. and Zi.H. the following week. Mother did not appear for the April 22, 2019 detention hearing. The juvenile court found the Agency made a prima facie showing on the petitions and detained the children in foster care.

Jurisdiction and Disposition Hearing

In the Agency's May 13, 2019 jurisdiction and disposition report, the Agency noted Mother had been unemployed and homeless for approximately two years. Mother admitted to using marijuana and denied using methamphetamine or cocaine, but failed to drug test. Mother missed all of the scheduled visits with the minors and did not attend the child and family team (CFT) meeting.

Since the minors had been detained, Z.H. had been attending the failure to thrive clinic twice a week and was gaining weight. Zi.H. was getting caught up on overdue vaccinations and was referred for further evaluation of a suspected speech delay. The foster mother reported that both minors had issues with food, including that they were always hungry and had to eat every couple of hours.

Mother attended a supervised visit with the minors in May 2019. The foster mother indicated that Zi.H. was not excited to see Mother and was hiding from her but eventually warmed up after a lot of prompting. At one point, Z.H. almost fell off of a table when Mother put her in her car seat on a table without buckling her in and then ran after Zi.H. Mother did not want to change Zi.H.'s dirty diaper and "gave up" after feeding Z.H. only one ounce of formula, despite the foster mother explaining the importance of Z.H. drinking all of her formula due to her failure to thrive.

By June 11, 2019, Mother had visited the minors only once. Aside from a single visit with a visitation coach, Mother had not followed through on appointments with service providers or for drug treatment, and she had not attended any of the minors' medical appointments. Mother also admitted to domestic violence with boyfriend, J.R., who had an extensive criminal record.

As of the Agency's August 13 and 27, 2019 addendum reports, Mother had attended her first drug court date and was in compliance. However, Mother's in-home parenting services and visitation coaching services were both closed because of her lack of participation and attendance. Mother had not visited the minors for about a month.

At the August 27, 2019 jurisdiction/disposition hearing, the juvenile court made true findings on the petitions, removed custody from Mother, placed the minors in licensed foster care, and ordered reunification services for Mother.

Six-Month Review Period

As of the February 2020 review hearing, the minors had been doing well since their April 2019 placement in a resource family home. Z.H. was at a healthy weight and no longer considered a "failure to thrive child." Because there were developmental concerns for both minors, the caregiver worked to ensure that the minors received appropriate services.

Mother was also "doing well." She entered drug treatment in November 2019, was participating in her drug treatment services, and remained clean for more than 70 days. Mother attended weekly supervised visits with the minors starting around October 2019, had begun attending the minors' medical appointments, and had been keeping track of their developments. Mother made contributions during CFT meetings and completed a 12-week parenting class.

A court appointed special advocate indicated Zi.H. became "more aggressive" after visits with Mother, might be on the autism spectrum, and was receiving weekly speech therapy. Z.H. began physical therapy for her" 'limp legs'" and had improved significantly.

Mother acknowledged to the Agency that her drug use affected her judgment on properly feeding the minors. The Agency recommended, and the juvenile court ordered, unsupervised visits with Mother at her sober living home.

Twelve-Month Review Period

By June 2020, Mother was continuing to do well in services and had been visiting with the minors twice a week for at least four hours. She completed drug treatment in February 2020, transitioned to living in a sober living facility, and was currently living with a relative. She had remained drug-free for approximately six months and was starting a new job at a casino. In April 2020, the children were placed with another relative caregiver. Zi.H. was referred for continued services due to his behavioral issues, including aggression during visits with Mother and throwing tantrums with the relative caregiver.

Eighteen-Month Review Period

Mother continued participating in parenting, drug treatment, drug testing, and visitation. Mother had not missed any visits with the minors during the reporting period and began overnight visits in October 2020. Although Mother attended some of the minors' medical appointments, she did not take a more active role in participating in the minors' developmental appointments. She was referred to a visitation coach to help her manage the behavioral issues the minors were having during their visits with her.

By the Agency's December 14, 2020 report, Mother had continued regular visits with the minors and began managing their services. She was working and had three overnight visits with the minors each week.

By February 2021, Mother had her own apartment, had continued to maintain employment for approximately six months, was compliant with services, and continued to test negative for drugs. The minors began a 60-day trial visit with Mother on January 28, 2021, and the minors appeared to be doing well. The Agency recommended, and the court ordered, that the minors be placed with Mother and receive family maintenance services.

Section 387 Petitions and Detention Hearing

On June 15, 2021, approximately four months after the minors were placed with Mother, the Agency filed section 387 petitions alleging that Mother tested positive for methamphetamine on May 28, 2021, and for methamphetamine and cocaine on June 10 2021, while supervising the minors. The Agency recommended the court order supervised visitation with Mother and that the minors be detained in foster care.

During this time, the social worker visited Mother in the afternoon and found Mother laying in bed with Z.H. The minors were not dressed and still in diapers, and Mother stated she had been tired lately. Mother was not honest with the Agency about her relapses. She had not been in contact with her sponsor in months and had struggled lately to follow up on the minors' appointments and schedule. She lost her job approximately two months prior and appeared overwhelmed by the change and her medical issues, and she used substances to help alleviate her physical pain.

Maternal great-grandmother (J.M.)^[2] said the minors had been staying with her every two weeks to give Mother a break and...