L.A. Cnty. Dep't of Children & Family Servs. v. Charlene Q. (In re Michael L.)
| Decision Date | 11 September 2019 |
| Docket Number | B296375 |
| Parties | In re MICHAEL L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHARLENE Q., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK70386C)
APPEAL from orders of the Superior Court of Los Angeles County, Sabina A. Helton, Judge. The order denying the petition for modification of court order is affirmed; the order terminating parental rights is conditionally affirmed and remanded with directions.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Charlene Q., the mother of eight-year-old Michael L., appeals from the juvenile court's February 21, 2019 orders denying her petition for reinstatement of family reunification services under Welfare and Institutions Code section 3881 and terminating her parental rights under section 366.26. Charlene contends the court erred in concluding additional reunification services were not in Michael's best interests and finding she had not established the parent-child-relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). She also contends the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to make the inquiries required under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and California law. We affirm the order denying Charlene's section 388 petition. We also affirm the finding that Charlene had failed to prove the parent-child-relationship exception applied in this case. However, because there is no evidence the juvenile court and the Department complied with ICWA, we remand the matter to allow the court and the Department to remedy that violation.
In October 2014 the Department filed a section 300 petition alleging Charlene had failed to provide her then-17-year-olddaughter, Ariella D., with necessary medical treatment and prescribed medication to address Ariella's seizures and psychosis, placing both Ariella and then-three-year-old Michael at substantial risk of physical harm. The petition also alleged Michael's father, Robert L., had a history of alcohol abuse and was a current abuser of alcohol, and his alcohol abuse put Michael at substantial risk of physical harm.2 Following a jurisdiction hearing the court sustained amended allegations as to both Charlene and Robert. At the disposition hearing in March 2015 the court declared the children dependents of the court, removed Ariella from Charlene's custody and released Michael to Charlene under the supervision of the Department. The court ordered family maintenance services for Charlene and family enhancement services for Robert.3
In September 2015 the Department filed a subsequent petition under section 342 alleging Charlene had a long history of using methamphetamine, was a current user and seller of methamphetamine and allowed individuals who she knew used or sold methamphetamine to have unlimited access to Michael. Michael was immediately detained from Charlene's custody. At the jurisdiction/disposition hearing the court sustained the new allegations and removed Michael from Charlene's custody. Thecourt granted Charlene monitored visitation and ordered her to submit to weekly, on-demand drug testing and to participate in individual counseling and parenting classes.
At the six-month review hearing on October 4, 2016 (§ 366.21, subd. (e)), the court found Charlene to be in partial compliance with her case plan and granted her additional family reunification services. However, by the time of the contested 12-month hearing on May 23, 2017 (§ 366.21, subd. (f)), Charlene had missed all her drug tests and had not visited with Michael. The court found neither Charlene nor Robert was in compliance with the case plan and no substantial probability existed that Michael could be returned safely to his parents' custody in six months. The court terminated family reunification services for both parents and set a selection and implementation hearing (§ 366.26) for September 19, 2017.
The September 2017 selection and implementation was taken off calendar and later reset for October 12, 2018.4 On July 31, 2018, soon after the new selection and implementation hearing was scheduled, Charlene filed a section 388 petitionseeking reinstatement of her reunification services and unmonitored visitation. Charlene alleged she had completed parenting classes and an in-patient rehabilitation program for her substance abuse, was participating in Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) and visiting Michael consistently. The court ordered an evidentiary hearing on Charlene's petition for October 12, 2018, the same day as the selection and implementation hearing. Both hearings ultimately occurred on February 21, 2019.
Charlene testified she had completed an in-patient drug and alcohol program and an after-care program and was residing in a sober living home. Charlene explained she had been sober for 18 months and regularly attended AA and NA meetings to reinforce her sobriety. She also testified she had visited consistently with Michael, but acknowledged she had missed some scheduled visits due to her work schedule.5
Charlene stated Michael was responsive and happy during her visits and cried when she left him. Charlene testified,
The Department and Michael's counsel urged the court to deny Charlene's section 388 petition. They argued it was not in Michael's best interests to reinstate family reunification services for Charlene. Michael was thriving in his current placement, andhis foster father had indicated a desire to adopt him; Charlene had not had custody of Michael for four years, more than half his life; and Charlene had declared her sobriety before, only to relapse. The social worker reported that, while Charlene was scheduled for weekly visits with Michael, she frequently had to cancel because of work, upsetting Michael.
The court denied Charlene's section 388 petition. Although the court found changed circumstances—Charlene's sobriety—it found reinstatement of Charlene's reunification services would undermine Michael's pressing need for permanency and stability. Turning to the section 366.26 hearing, the court found it likely that Michael would be adopted and no exceptions to termination of parental rights applied. The court terminated Charlene's and Robert's parental rights and transferred the care, custody and control of Michael to the Department for adoptive planning and placement.
At the initial October 2014 dependency hearing Charlene submitted Judicial Council Forms, form ICWA-020, Parental Notification of Indian Status, affirmatively stating she had no Indian ancestry. Robert did not appear at that hearing, and his whereabouts at that time were unknown. Notwithstanding Robert's absence, the court stated, The court did not indicate when the "prior finding" as to ICWA had been made, andthe record does not include any findings or ICWA-related material concerning Robert.6
Robert appeared at the December 11, 2014 jurisdiction/disposition hearing, his first appearance in this case. The record does not include an ICWA-020 form completed by Robert at that time, and the minute order from that hearing does not indicate an ICWA finding was made concerning Robert's potential Indian ancestry.
The minute order for the September 4, 2015 jurisdiction hearing on the subsequent section 342 petition states the court found it "does not have a reason to know that [Michael] is an Indian Child" and that a form ICWA-020 "is signed and filed." However, the reporter's transcript of that hearing does not reflect any mention of ICWA, let alone indicate a specific finding was made. The appellate record does not contain a form ICWA-020 signed by Robert at any time, and the only ICWA inquiry/finding mentioned in the Department's reports is the finding made in October 2014 before Robert appeared. Neither the minute orderof the section 366.26 hearing nor the transcript of those proceedings indicates any ICWA inquiry was made at that hearing.
Section 388 provides for modification of juvenile court orders when the moving party (1) presents new evidence or a change of circumstance and (2) demonstrates modification of the previous order is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Y.M. (2012) 207 Cal.App.4th 892, 919; see Cal. Rules of Court, rule 5.570(e); see also In re Zacharia D. (1993) 6 Cal.4th 435, 455 [...
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