L. A. Cnty. Dep't of Children & Family Servs. v. Lydia O. (In re Breanna S.)

• Decision Date: 14 February 2017
• Docket Number: B275340
• Citation: 214 Cal.Rptr.3d 98,8 Cal.App.5th 636
• Parties: IN RE BREANNA S. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Lydia O., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

8 Cal.App.5th 636

214 Cal.Rptr.3d 98

IN RE BREANNA S. et al., Persons Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Lydia O., Defendant and Appellant.

B275340

Court of Appeal, Second District, Division 7, California.

Filed February 14, 2017

Jamie A. Moran, San Diego, under appointment by the Court of Appeal, for Lydia O.

Patricia K. Saucier, San Diego, under appointment by the Court of Appeal, for Jesse S.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistance County Counsel, and David Michael Miller, Deputy County Counsel, for Respondent.

PERLUSS, P.J.

Lydia O. and Jesse S., the mother and presumed father of nine-year-old Breanna S. and four-year-old David S., appeal the juvenile court's May 17, 2016 order pursuant to Welfare and Institutions Code section 366.26¹ terminating their parental rights and identifying adoption as the permanent plan for Breanna and David. Lydia contends the juvenile court erred in ruling she had failed to establish the parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i) ). Jesse contends the court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq. ). Lydia has joined Jesse's ICWA notice argument (Cal. Rules of Court, rule 8.200(a)(5) ). We agree the Department failed to comply with ICWA's notice requirements, remand the matter to allow the Department and the juvenile court to remedy that violation of federal and state law and otherwise conditionally affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition and Review Hearings

The juvenile court sustained an amended dependency petition on behalf of Breanna and David on July 28, 2014 pursuant to section 300, subdivisions (a) and (b), finding that Lydia and Jesse had a history of engaging in violent confrontations in the presence of the children, the children were frightened of Jesse due to those encounters, Jesse had violated a criminal court restraining order, and Lydia had failed to protect the children by remaining in the relationship despite multiple episodes of domestic violence. In addition, the court found that Jesse had a history of illicit drug abuse and was a current abuser of marijuana and alcohol, which rendered him incapable of providing regular care and supervision of the children. The court removed the children from Lydia's and Jesse's custody, placed them with their maternal grandmother and ordered family reunification services for both parents.

Between the children's detention on May 28, 2014 and the July 28, 2014 jurisdiction/disposition hearing, Lydia visited the children only twice.

Prior to the six-month review hearing (§ 366.21, subd. (e)) originally scheduled for mid-January 2015, Breanna and David were placed with their "maternal great cousins." Lydia and Jesse informed the Department they remained in a romantic relationship notwithstanding the past incidents of violence and wanted to reunify with their children as a family unit. Lydia's visitation remained infrequent.

At the continued six-month hearing on April 15, 2015 the court found Lydia and Jesse in partial compliance with their case plans and ordered the Department to continue to provide them with reunification services. Lydia visited with the children twice in February 2015 and not at all in March 2015. She had three visits with them by mid-April.

At the 12-month review hearing in July 2015 (§ 366.21, subd. (f)) the court again found Lydia in partial compliance and ordered reunification services continued for her. Lydia failed to attend her scheduled visits with the children in June and July 2015. According to the relative caregivers' call log, Lydia had failed to call the children for scheduled telephone visits more than half the time.

Following a contested hearing in September 2015 the court terminated Jesse's services. He had failed to reenroll in a substance abuse class, as ordered, and had been discharged from his domestic violence program due to poor attendance.

On November 20, 2015 the court issued a temporary restraining order against Jesse at Lydia's request following a physical attack earlier that month. As reflected in the sustained petition and the Department's detention and jurisdiction reports, this was not the first restraining order Lydia had obtained against Jesse: A restraining order had previously been granted in May 2012 protecting Lydia and both children; Jesse had been arrested in February 2014 for violating that order, which prompted the referral of the family to the Department.

After a contested 18-month permanency review hearing (§ 366.22) on January 12, 2016, the court terminated Lydia's reunification services and set a selection and implementation hearing (§ 366.26 ) for May 9, 2016. Although Lydia had completed a parenting education class and a domestic violence program, she was not in compliance with the substance abuse component of her case plan. In addition, although Lydia had previously identified depression and post-traumatic stress disorder as the reasons for her failure to consistently visit with the children, she was not obtaining any mental health treatment. Lydia reported she had resumed her relationship with Jesse and was again pregnant. The caregivers reported Lydia's visits with the children remained sporadic.

2. The Selection and Implementation Hearing and Termination of Parental Rights

In its report for the selection and implementation hearing, dated May 9, 2016, the Department advised the court that Breanna and David remained suitably placed with their maternal cousins, who continued to provide them with a stable home environment, meeting their physical, emotional and medical needs. The Department also reported the maternal cousins were committed to provide the children permanency through adoption in the event reunification for the parents failed and indicated the home study for the maternal cousins was nearly complete. In addition, according to the Department's social worker the children appeared happy and bonded with these caregivers, referring to them as "mom" and "dad."

Lydia's visits remained monitored; and her contact with the children was only sporadic. The caregivers reported Lydia often scheduled a visit and then failed to follow through. Jesse's visits were characterized as "inconsistent," occurring on average only twice a month.

At the request of counsel for the children, the hearing was continued; and the Department was directed to again interview Breanna, who was experiencing "some conflict" about the options for a permanent plan. In a report submitted May 17, 2016 the social worker stated Breanna was clear she wanted to be adopted by her current caregivers; her "conflict" had to do with her concern about appearing disloyal to Lydia and Jesse.

The court denied Lydia and Jesse's request for Breanna to testify at the continued hearing, explaining her ambivalence was not in dispute and, given her age (eight years old at this point in the proceedings), her wishes with regard to the question of bonding were of minimal significance. Lydia testified her visits with the children had become more frequent during the preceding six months and blamed the caregivers for her previous infrequent visitation, but acknowledged she had not spent any holidays with Breanna and David, attended any of their medical appointments or otherwise spent any significant time in their home. Jesse also testified concerning his even more limited visitation with the children.

At the conclusion of the contested hearing the court found by clear and convincing evidence that it would be detrimental to the children to be returned to their parents, that Breanna and David were likely to be adopted in a reasonable time and that Lydia and Jesse had failed to establish the statutory parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i) ). The court acknowledged that Breanna had a relationship with Lydia and Jesse, "that she will always see you as her mother and her father, but that is not enough."

The court reviewed the parents' visitation history and ruled, "I can't find that there has been a consistent and regular pattern of visitation. Your visitation has not changed from monitored from the time of the initial hearing on this case in May of 2014. It has yet to change to unmonitored because you failed to do what the court ordered you to do, and you get into another physical altercation with each other." The court additionally ruled there was insufficient evidence to show the children would benefit from continuing the parent-child relationship, noting that Breanna did not want to return to Lydia because she was afraid Jesse was going to be around. Accordingly, the court terminated Lydia and Jesse's parental rights and reconfirmed adoption as the children's permanent plan.

3. Investigation of Indian Ancestry and ICWA Notice

On her Judicial Council form ICWA-020, Parental Notification of Indian Status, filed on May 20, 2014, the date of the initial detention hearing, Lydia indicated she may have Indian ancestry, identifying the Apache and Yaqui tribes. Similarly, the detention report filed by the Department stated "[t]he Indian Child Welfare Act may apply," explaining that Lydia had disclosed she may have American Indian ancestry, naming the Yaqui and Apache tribes but stating she had no further information.² The juvenile court ordered the Department to investigate Lydia's possible Indian ancestry, to give notice to the proper tribe or tribes and the Bureau of Indian Affairs (BIA), if appropriate, and to include the information concerning her ancestry in its next report to the court.

In its jurisdiction/disposition report dated June 12, 2014 the Department advised the court it had interviewed Lydia regarding her Indian ancestry...