In re Merrick V.
| Decision Date | 13 September 2004 |
| Docket Number | No. D043261.,D043261. |
| Citation | 19 Cal.Rptr.3d 490,122 Cal.App.4th 235 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re MERRICK V. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Alice E., Defendant and Appellant. |
Sharon S. Rollo, under appointment by the Court of Appeal, Chatsworth, for Defendant and Appellant.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Caitlin E. Rae, Deputy County Counsel, for Plaintiff and Respondent.
Christopher Blake, under appointment by the Court of Appeal, San Diego, for Minors Merrick V. and Morrigan V.
Robert Wayne Gehring, under appointment by the Court of Appeal, for Minor James V.
Alice E. is the maternal grandmother and guardian of twin brothers, Merrick V. and Morrigan V. and their half brother, James V. The boys were declared dependents of the juvenile court because of neglect. Alice appeals orders (1) finding the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.) did not apply, (2) terminating her guardianship, and (3) denying her de facto parent status. Alice also claims her trial counsel was ineffective.
We agree that the orders finding ICWA did not apply must be reversed in the twins' cases because ICWA's notice requirements were not followed; we remand to the juvenile court with directions to reconsider the issue after proper notice has been given. We reject Alice's claims pertaining to the other orders of the juvenile court and affirm.
James, born in January 1991, and Merrick and Morrigan, born in December 2000, are the sons of Rebecca V., who has a long history of drug abuse and homelessness. Rebecca had a positive drug toxicology when the twins, Merrick and Morrigan, were born. On August 12, 2002, the probate department of the superior court issued letters of guardianship, naming Alice the legal guardian of James, Merrick and Morrigan.
On January 19, 2003, Chula Vista police officers found two-year-old Merrick and Morrigan wandering in the street unattended, wearing nothing but dirty diapers. The officers could not locate the twins' parents and took them to Polinsky Children's Center, where they tested positive for methamphetamine and marijuana. On January 23, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of the twins, alleging (1) they were at substantial risk because of the failure of their parent or legal guardian to provide them with food, clothing and shelter, and (2) they had been left without any provision for support. (Welf. & Inst.Code, § 300, subds. (b) & (g).)1 The petitions identified Rebecca as the person from whom the children were removed. Rebecca was listed as the twins' mother; Alice was not named in the petitions.
James had been staying at the residence of one of his mother's friends. He had insect bites on his chest from sleeping on the floor. School officials told social workers that James's attendance was inconsistent and that he was late for school four out of five days per week. James also arrived at school at odd hours, such as 5:00 a.m., and he had been seen on the roof of the cafeteria. James was taken to Polinsky Children's Center on January 31, 2003.
James told a social worker he lived with his mother and sometimes with his grandmother. Alice told a social worker that she helped care for the boys. Alice also told the social worker that when Rebecca lived with her, Rebecca used drugs and was "in and out of the home all of the time" and often slept all day long. Alice informed the social worker that she had applied for guardianship of the boys because Rebecca neglected them, but that she had not followed through with the application process.
On February 5, 2003, Agency filed a dependency petition on behalf of James, alleging he was at substantial risk because of the failure of his parent or legal guardian to provide him with food, clothing and shelter, and his siblings had been neglected. (§ 300, subds.(b) & (j).) The petition identified Rebecca as James's mother; Alice was not named in James's petition.
Alice said she had cared for the children until a week before their removal, when she returned them to Rebecca's care because she was suffering health problems. Rebecca told the social worker that on the day the twins were found wandering in the street, she had left them with a friend while she went to pick up their clothing at another friend's apartment.
On February 11, 2003, at the dispositional hearing for Merrick and Morrigan, neither Rebecca nor Alice was present. The court sustained the petitions filed on behalf of Merrick and Morrigan and placed them in a licensed foster home. Rebecca appeared at a special hearing for the twins the following month. The court ordered six months of reunification services for Rebecca.
On March 11, 2003, Rebecca appeared in court and submitted to the jurisdiction of the juvenile court as to James. Through her attorney, Rebecca informed the court that she might have some American Indian heritage, specifically the Yaqui Indian Tribe. The court determined that the ICWA did not apply, but directed Agency to send notice to the Yaqui Tribe and the Bureau of Indian Affairs (BIA). The court ordered Rebecca to enroll in the Substance Abuse Recovery Management System (SARMS), the court's drug treatment case management program, and to comply with her case plan. James was placed in a licensed foster home.
On June 6, 2003, Alice wrote a letter to the court in which she expressed her concerns about James's foster home placement. In the letter, Alice stated that she was the legal guardian of James, Merrick and Morrigan. On June 10, Alice wrote another letter to the court stating that she had had custody of James for the last three years and that she had had custody of the twins since their birth. Alice said the boys were visiting their mother at the time they were picked up by authorities. Enclosed with Alice's letter was a copy of the letters of guardianship issued by the probate court, appointing Alice legal guardian of the three children effective August 12, 2002.
On June 10, 2003, at a SARMS review hearing, after having received Alice's letter and the guardianship papers, the court directed the social worker to evaluate Alice's home for placement and visitation purposes, and set a special hearing on the matter for July 1.
After conducting its investigation, Agency recommended that the three boys remain placed in their foster homes. Agency reported that Alice, who shared a two-bedroom apartment with adult friends, was on temporary disability due to stress. Alice told a social worker she had sent the children back to live with Rebecca in January 2003 because Alice was suffering from bronchitis, high blood pressure and chest pains. Since Alice had earlier told a social worker that Rebecca had a long history of drug abuse, it appeared that she had decided to return the children to Rebecca's care despite knowing Rebecca used drugs. Agency concluded that the children should not be placed with Alice because (1) she did not have suitable housing for them, (2) the twins were very active and required intensive supervision, (3) it was questionable whether Alice could care for the children in view of her health problems, and (4) Alice had returned the children to Rebecca knowing Rebecca abused drugs, thereby placing them at risk. On July 1, the court received Agency's report. The court took no action other than to direct Agency and the children's counsel to investigate whether the children's educational and medical needs were being met.
On July 18, 2003, Agency filed a request under section 728 that the juvenile court seek permission of the probate court to terminate Alice's guardianship, and also filed a section 388 motion to accomplish the termination. Agency pointed out that Alice had never provided Agency with the guardianship papers although she had had numerous contacts with social workers. Agency also recommended that the court terminate Rebecca's reunification services and set a section 366.26 hearing for all three children. The social worker reported that Rebecca had not complied with her case plan and that she was uncooperative with both SARMS and the social worker.
On August 12, 2003, the court amended the petitions to add Alice as the guardian of the children, and appointed counsel for Alice. Neither Alice nor her counsel requested reunification services.
At the end of August 2003, Rebecca was discharged from drug court because she had tested positive for marijuana and refused residential treatment.
On September 18, 2003, Alice filed a de facto parent application in which she stated that Merrick and Morrigan had lived with her since their birth, and that James had lived with her when he was between the ages of four and six, and eight and 12 years. The application also stated that Alice had provided the children with shoes, clothing, food and housing while taking care of their daily needs. Alice intended the de facto parent application as a contingency in the event the court terminated her guardianship.
At the contested hearing on September 18, 2003, Alice acknowledged that she should not have returned the children to Rebecca's care when she was ill and said she was sorry the children had suffered. Alice said she believed at the time that Rebecca was stable because she had a place to live and was involved in a job program. Alice also testified that for various reasons, including Rebecca's denials, which Alice believed, she did not have any reason to think Rebecca was using drugs. On cross-examination, Alice denied having told a social worker in January that Rebecca had a long history of drug use. Alice also denied she had told the social worker that she had requested guardianship of the...
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