In re Miguel E.

• Decision Date: 08 July 2004
• Docket Number: No. D042403.,No. D042787.,No. D043040.,D042403.,D042787.,D043040.
• Citation: 120 Cal.App.4th 521,15 Cal.Rptr.3d 530
• Court: California Court of Appeals Court of Appeals
• Parties: In re MIGUEL E. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Leeanna A., Defendant and Appellant. In re Miguel E. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Leeanna A., Defendant and Respondent; Deborah V. et al., Objectors and Appellants; Miguel E., Appellant. In re Miguel E., a Minor, on Habeas Corpus.

15 Cal.Rptr.3d 530

120 Cal.App.4th 521

In re MIGUEL E. et al., Persons Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Leeanna A., Defendant and Appellant.

In re Miguel E. et al., Persons Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Leeanna A., Defendant and Respondent;

Deborah V. et al., Objectors and Appellants;

Miguel E., Appellant.

In re Miguel E., a Minor, on Habeas Corpus.

No. D042403.

No. D042787.

No. D043040.

Court of Appeal, Fourth District, Division 1.

July 8, 2004.

Review Denied September 29, 2004.^*

Linda M. Fabian, under appointment by the Court of Appeal, for Defendant and Appellant and for Defendant and Respondent.

Suzanne F. Evans, San Diego, under appointment by the Court of Appeal, for Objectors and Appellants.

Andrea R. St. Julian, San Diego, under appointment by the Court of Appeal, for Appellant, for Petitioner Miguel E. and for Minors.

John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.

HUFFMAN, J.

These proceedings concern three children: Miguel E., born in September 1995; Aaron A., born in August 2000; and C.A. A., born in June 2002. Their mother, Leeanna A. (Mother), along with Miguel and the children's maternal grandmother and maternal step-grandfather, Deborah and John V. (individually, Grandmother and Grandfather; together, Grandparents),¹ appeal the June 17, 2003 order removing all three children from Grandmother pursuant to Welfare and Institutions Code section 387.² Appellants contend the removal was erroneous for numerous reasons. Mother additionally contends that, in Aaron's case, the court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). Miguel has filed a petition for writ of habeas corpus seeking relief from the purportedly untimely filing of his notice of appeal. The Agency has filed two dismissal motions: the first requests that Miguel's appeal be dismissed as untimely and Grandparents' appeal be dismissed for lack of standing; the second requests that all the appeals be dismissed as to C.A.

We deny Miguel's petition as moot and dismiss Grandparents' appeal for lack of standing. Because the section 387 and ICWA issues are meritorious, we reverse the section 387 order, remand for a new section 387 hearing at which the juvenile court shall properly exercise its discretion, and reverse in Aaron's case and remand for proper ICWA notice.

I. THE INCEPTION OF THE DEPENDENCIES

In July 2001, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for five-year-old Miguel and 10-month-old Aaron. The petitions alleged Mother used marijuana to excess and had been seen blowing smoke in Aaron's face and Miguel tested presumptively positive for marijuana. Miguel and Aaron were detained in Polinsky Children's Center and then, on July 16, with Grandmother, who had cared for them previously.

In September, the petitions were amended by adding allegations that Mother left Miguel unattended outside their home on numerous occasions between the hours of 10:00 p.m. and 12:00 a.m. The juvenile court dismissed the allegations in the original petitions and made true findings on the new allegations. It placed both boys with Grandmother on the Agency's recommendation.

When C.A. was born in June 2002, the Agency filed a petition alleging (1) Mother had a mental illness, including adjustment disorder with anxiety and depressed mood with parent-child relational problems, rendering her unable of providing regular care; and (2) she had failed to progress in services following the true finding in Miguel's case. On June 15, C.A. was detained in Grandmother's approved home. In July, the court dismissed the first allegation of C.A.'s petition and made a true finding on the second. In August, the court placed her with Grandmother on the Agency's recommendation.

II. THE PLACEMENT WITH GRANDMOTHER

In June 2001, just before the original dependency petitions were filed, Psychologist Steven Sparta evaluated Miguel, apparently in conjunction with a family court case. Dr. Sparta noted in Miguel "an underlying sense of instability and insecurity with anticipatory anxiety about future disruptions in his ability to maintain an attachment with caretakers." Dr. Sparta conferred with Miguel's attorney "about the importance for Miguel to have a stable and sustained family history." Dr. Sparta believed it was very important that Miguel experience stability and emotional support "and a continuing opportunity to not change schools, to form other social and familial attachments."

From the beginning of the case, the Agency's reports regarding the children's placement with Grandmother were positive. Throughout 2002, the Agency described the home as "appropriate" and noted that Grandmother "provide[d] adequate care." In May, however, an Agency report referred to Mother's "family background" as a factor "elevat[ing] her potential for child abuse," and a July report noted: "[Mother] reported issues of domestic violence, physical abuse and sexual abuse during her childhood. She stated that she was responsible for the care of her siblings when she was younger and had reported her mother to CPS where they were once dependents."

According to the boys' March 2002 six-month review report, Aaron was "progressing very well." While Miguel's school performance had improved, he continued to have difficulty and was working below grade level. Grandmother "continue[d] to assist [him] with his school assignments and [was] making efforts with getting [his] work up to par." Miguel's therapist had diagnosed post traumatic stress disorder (PTSD)³ but said "Miguel [was] stabilizing in his placement and display[ed] little acting out." Miguel had mild flashbacks, abandonment issues, and occasional nightmares.

According to the boys' September 2002 12-month review report, they had made very good progress developmentally. Miguel's therapist said that he was doing very well and was less anxious, although he did "experience some difficulty with transitions." The therapist believed that Miguel's current school was good for him and that the school staff were "able to support him." Miguel had raised his grades, had been promoted to the next grade level, and had received an outstanding citizenship award. He had "improved immensely academically" and was "excited about attending school."

In Miguel's and Aaron's January 2003 18-month review report, the Agency stated: "For the past year, Miguel and ... Aaron have been able to experience stability, love, care and affection from [Grandparents] who filed a petition in 2001 with Family Court to have Miguel in their care. It was the recommendation of the Family Court that Miguel live with [Grandparents]. This order was countered when the Juvenile Courts became involved with the family and Miguel and Aaron were taken into custody by the Agency." The report noted that the boys had adjusted to Grandmother's home and described her care of them as "excellent." Miguel's therapist observed that his PTSD symptoms had subsided and he was doing well. Miguel continued to attend the same school, was socializing better with his peers, had received good behavior awards, and had "shown exceptional improvement with his grades." The Agency remarked that he had "shown remarkable change while in the care of [Grandparents]." Aaron, whose weight gain had been reported as poor before he was taken into custody, had reached all of his developmental milestones, although there was "some concern regarding his active behavior."

In a letter filed February 24, 2003, Miguel's therapist recommended that Miguel continue living with Grandmother, whose home was "a secure and supportive environment that has helped [Miguel] be successful in school and in the community." The therapist said that Miguel's therapy could conclude over the next few weeks, as he had been "largely symptom-free for the last 90 days."

During a social worker's May 4, 2003 visit to Grandmother's home, Miguel followed Grandmother around the house and engaged in any activity she suggested. When Miguel gave Grandmother a craft he had made in Sunday school, she "doted over the craft and hung it on the wall."⁴

In C.A.'s February 13, 2003 six-month review report, the Agency stated she "seem[ed] to be doing very well in [Grandmother's] home." It concluded that C.A. was "in need of a stable and secure environment so that she can continue to be provided with the excellent care that she has been receiving."

At C.A.'s February 13, 2003, six-month review hearing, the court followed the Agency's recommendations that she continue to be placed in Grandmother's approved home and a 12-month review hearing be set. The court set the hearing for August 14. At Miguel's and Aaron's February 24 18-month review hearing, the court followed the Agency's recommendations that the boys continue to be placed in Grandmother's approved home and that a section 366.26 hearing be set. The court set the hearing for June 24.

III. THE REMOVAL PROCEEDINGS

A. The Detention and Petitions

On May 30, 2003, the Agency moved the children from Grandmother's home to emergency shelter foster homes, with Miguel and Aaron in one home and C.A. in another. On June 2, the Agency filed section 387 supplemental petitions for the children, alleging "[t]he previous disposition has not been effective in the protection or rehabilitation of the child"; Grandmother was "no longer able to provide adequate care and supervision ... in that a prior history of CPS [(Child Protective Services)] neglect and abuse was discovered together with statements by [Grandmother] that [Grandfather] suffers from a mental illness." The Agency recommended foster home placement. At the June 2 detention...