Santa Cruz Cnty. Human Servs. Dep't v. C.M. (In re H.S.)

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

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.M., Defendant and Appellant.

H050031

California Court of Appeals, Sixth District

March 9, 2023

NOT TO BE PUBLISHED

(Santa Cruz County Super. Ct. Nos. 20JU00252, 20JU00253)

Wilson, J.

In this dependency proceeding, C.M. (mother) appeals the juvenile court's 12-month review orders continuing reunification services and her children's placement in foster care. C.M. argues she was denied due process because a conflict of interest undermined the dependency proceedings-her children's foster father was a district attorney in the same office that was simultaneously prosecuting her for the crimes which formed the basis for her children's detention. She also contends the juvenile court erred in finding that reasonable reunification services had been provided to her and that adequate notices had been issued pursuant to the Indian Child Welfare Act (ICWA).

We determine there was a potential conflict of interest which should have been disclosed earlier in the proceedings and that C.M. was denied due process because it was not. However we also conclude the due process denial was harmless here under any applicable standard. We further find that C.M. forfeited her arguments regarding the reunification services by not raising them below and that she has not demonstrated the ICWA notices were inadequate. Accordingly, we affirm.

I. Factual and Procedural Background

A. Minors' detention

On November 16, 2020, Santa Cruz police officers conducted a welfare check at C.M.'s apartment in Santa Cruz in response to a report of general neglect, including that C.M. appeared drunk and wobbly while caring for her three minor children. Upon arrival, an officer knocked on the door several times and noted items scattered in front of the residence in an unorganized manner. The officer observed excessive garbage and belongings inside, as well as a pot of boiling water on the stove. C.M.'s 17-month old son O.S. was walking through the residence wearing only a t-shirt and the officer noticed a lesion on his left thigh.

C.M. then approached from the south side of the complex with her four-year-old daughter H.S. (hereafter, Ha.S.) in her arms. C.M. had a black substance under her nose, on her teeth and on her pants, which the officer suspected was residue from inhalant drug use. When asked about O.S. being left inside alone, C.M. stated she was going back inside. The officer instructed her to wait and had to detain her when she physically resisted while holding Ha.S. in her arms.

Once officers entered the residence, they observed O.S. had dirt on his face and a small scratch on his right nostril, while Ha.S. had a red abrasion on her left bicep and left forearm, and a vertical abrasion on the center of her neck, which she said were from C.M. "pinching her." The oldest child, 13-year-old Hu.S., was inside his bedroom with the door closed. He reported to the officers that C.M. had grabbed him by the arm and punched him once in the stomach a few days earlier. Inside the residence, the officers also found "Dust Off," a compressed gas aerosol commonly used as an inhalant drug.

According to the officers, the residence as a whole was filthy, uninhabitable, and lacked healthy conditions for the children.

The officers believed the children suffered serious physical and mental harm due to C.M. being physical with them and failing to provide adequate supervision and protection. Accordingly, they contacted respondent Santa Cruz County Human Services Department (Department) and detained the children pursuant to Welfare and Institutions Code section 300.^[1]

Two social workers arrived and noticed that the exterior entryway was cluttered with a mixture of garbage, toys, and other items. Pet food was scattered throughout, and crushed into crumbs and small bits in various locations. The floors were covered with excessive dirt and piles of dirty laundry within each room and the only bathtub in the home was plugged up with several inches of water and various items floating in it. Human excrement and vomit lay on bed sheets on the floor; there was no food in the refrigerator; the sink was full of dirty dishes; and there were rodent droppings on the floor.

Hu.S. shared that C.M. does not get along well with the neighbors and that the previous month she had pulled a knife out in front of one neighbor who had asked her to move her car. He added that neighbors and friends of his mother have told him C.M. is a drug user. He said that C.M. had dropped O.S. on his head "so many times, he has lost count." Hu.S. told the social workers that his family did not have food in the home and did not get their usual food stamp assistance that month because his parents had not followed through on renewing the benefits.

The children were placed with an emergency licensed foster home in Santa Cruz County (County) on November 16, 2020. C.M. was arrested and taken to County jail.

On November 17, 2020, the social workers met separately with the children's father R.S.; with C.M.; and with the children at their emergency foster home. R.S. reported that he and C.M. were in the process of separating and that he wanted to secure his own residence so he could keep the children safe. He expressed concerns regarding C.M.'s mental health and said she denies she has any issues and refuses to seek professional treatment, despite his requests. C.M. has told him she believes the social workers want to kill her and that the local police department is "in on it."

The social workers then met with C.M. at the County jail. C.M. stated that she has no history of mental health problems and that, while she has a history of substance abuse, she last used methamphetamine about 10 years earlier.

The social workers next visited the children at their emergency foster home. Hu.S. reported that he had noticed a change in his mother approximately nine to 10 months earlier, when she "stopped being a mom." He said that she no longer cleans, cooks or takes care of him and his siblings as she used to, and instead cries a lot and "has not been in the right mind." She will often say someone is trying to kill her, bomb her car or poison her. Hu.S. stated that they have never gone without electricity before, but they have gone without water in the past. He said they currently do not have food stamps and usually C.M. will go to local food banks, but lately she has not been going.

B. C.M.'s arrest and charges

As noted above, C.M. was arrested on November 16, 2020. She was charged with one count of willful cruelty to a child: possible injury/death (Pen. Code, § 273a, subd. (a)), a felony; and one count of obstructing or resisting a police officer (Pen. Code, § 148, subd. (a)), a misdemeanor. She was arraigned on November 18, 2020, and a criminal protective order was issued protecting the children from her. On June 25, 2021, C.M. was held to answer for the charges at a preliminary hearing.^[2]

C. Petitions

The Department filed juvenile dependency petitions for the children on November 18, 2020. With respect to Ha.S. and O.S., the petitions alleged that the children fell within the provisions of section 300, subdivisions (a) serious physical harm; (b) failure to protect; (c) serious emotional damage; and (j) abuse of sibling. As to Hu.S., the petition alleged that he fell within the provisions of subdivisions (a), (b), and (c).^[3]

In support of the section 300, subdivision (a) provisions, the petitions alleged that the children have suffered, or are at substantial risk of suffering, serious physical harm inflicted by their mother C.M. On November 12, 2020, C.M. "slap-punched" and "shoved" Hu.S. in his stomach, left shoulder and face, and pushed him to the ground. On November 16, 2020, Ha.S. had red abrasions on her left bicep, left forearm, and on the lower part of her neck, from C.M. pinching her. O.S. had an irritated abrasion on his left inner thigh.

In support of the section 300, subdivision (b), provisions, the petitions alleged that C.M. suffers from unstable and/or untreated mental health issues, which negatively impact her ability to provide regular and appropriate care for her children, and put the children at substantial risk of serious physical harm. On November 12, 2020, C.M. yelled at Hu.S. that his uncle was planning to "murder her and steal her babies." C.M. often tells Hu.S. that "someone is trying to kill her," and she once threatened her friend with a knife. On November 16, 2020, law enforcement determined the family's home to be hazardous to the health and safety of the children, and uninhabitable.

The petitions further alleged that C.M. abuses substances including inhalants, which negatively impacts her ability to provide safe and appropriate care for her children. C.M. began using alcohol when she was 11 years old and methamphetamines when she was 19. She has had child welfare services interventions regarding her substance abuse since 2011 and was offered court-ordered services from November 2011 to August 2013. The petitions concluded that C.M.'s substance abuse, coupled with her undertreated mental health, significantly increase the risk of harm to her children.

The petition also alleged that the children's father R.S failed to protect them from the behavior of their mother. R.S. is aware of C.M.'s substance abuse and mental health struggles, which impact her ability to provide safe and appropriate care and a safe home environment for the children. R.S. stated that on October 19, 2020, C.M. had chased Hu.S. with a knife and threatened to kill everybody and chased the neighbors into the parking lot. He said that C.M. is a danger to him and to the...