L. A. Cnty. Dep't of Children & Family Servs. v. Shahida R. (In re Kadence P.)

• Decision Date: 09 November 2015
• Docket Number: B262787
• Citation: 241 Cal.App.4th 1376,194 Cal.Rptr.3d 679
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE KADENCE P., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Shahida R. et al., Defendants and Appellants.

241 Cal.App.4th 1376

194 Cal.Rptr.3d 679

IN RE KADENCE P., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.Shahida R. et al., Defendants and Appellants.

B262787

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

Filed November 9, 2015

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant Shahida R.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant Robert P.

Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.

PERLUSS, P.J.

Shahida R. and Robert P. appeal from the jurisdiction findings and disposition order declaring their infant daughter, Kadence P., a dependent of the juvenile court and removing her from their custody after the court sustained an amended petition pursuant to Welfare and Institutions Code section 300¹ alleging Shahida had untreated mental and emotional problems, a history of substance abuse and currently abused methamphetamine and marijuana, all of which rendered her incapable of providing regular care for Kadence; and Robert's recent violent assault of a female companion placed Kadence at risk of physical harm. Shahida contends the jurisdiction findings are not supported by substantial evidence. In addition, both Shahida and Robert contend the juvenile court failed to comply with the requirements of the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1900 et seq. ) and join in each other's arguments directed to that issue on appeal. We remand the matter to allow the juvenile court to comply with ICWA and otherwise conditionally affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Predetention Efforts to Avoid Intervention

In August 2014 the Los Angeles County Department of Children and Family Services (Department) received a referral that Shahida was abusing illicit drugs when four-month-old Kadence was in her custody and had been inconsistent in taking the medication prescribed for her diagnosed bipolar disorder and anxiety. A Department social worker went to Shahida's home in Palmdale to investigate, but the apartment was empty; neighbors explained Shahida and Kadence had recently, and abruptly, moved. The Department finally located Shahida and Kadence in Nevada, where Shahida explained she had gone to meet the social worker assigned to her older children's dependency case, filed in Washoe County, Nevada in June 2012.² Shahida told the Department she had been clean and sober for more than two and one-half years and was in the process of reunifying with her older children, who had been placed with Shahida's sister in Los Angeles County in accordance with a Nevada juvenile court case plan. Shahida's social worker in Nevada confirmed Shahida had been compliant with her case plan during her pregnancy with Kadence and for several weeks after Kadence's birth, but appeared recently to have relapsed. She had not appeared at several drug tests, and the one time she did test the results were inconclusive due to a diluted sample. Shahida's sister similarly told the Department that Shahida recently appeared to be under the influence of illicit drugs when she visited the children.

Shahida denied using any drugs other than her prescribed medication for anxiety and depression. At the Department's request, on September 3, 2014 Shahida agreed to submit to a drug test; but staff at the testing center observed Shahida with some type of device and, as a result, deemed her test invalid. Shahida denied bringing a device with her. When asked by the staff at the testing center and the Department to retake the test, she became angry and refused. On September 23, 2014 Shahida brought Kadence to meet with Department social worker, who observed Kadence to be overall in good health. Afterward, however, Shahida failed to respond to the Department's multiple efforts to contact her to arrange for a team decisionmaking meeting and further drug testing.

2. The Dependency Petition

On October 27, 2014 the Department filed a petition under section 300 alleging Shahida had a long history of substance abuse, was a current abuser of methamphetamine and marijuana and her substance abuse had led to the removal of her three older children in ongoing dependency proceedings in Washoe County, Nevada. The petition also alleged that Shahida suffered from diagnosed and only intermittently treated bipolar disorder and anxiety and her emotional instability and substance abuse rendered her incapable of providing regular care for then six-month-old Kadence. A first amended petition, filed December 18, 2014, added the allegation that Robert had been arrested on October 17, 2014 for assaulting his female companion and brandishing a firearm, violent conduct that placed Kadence at risk of physical harm. Neither Shahida nor Robert appeared at the initial detention hearing. After concluding the Department had made a prima facie showing that Kadence was a person described by section 300, the court issued an arrest warrant for Shahida and a protective custody warrant for Kadence and ordered Kadence detained as soon as she was found. Shahida and Kadence were located in December 2014, and Kadence was immediately detained and placed with her paternal aunt.

3. The Jurisdiction and Disposition Hearings

At the March 10, 2015 jurisdiction hearing the Department presented evidence of Shahida's long history of substance abuse, the ongoing dependency proceedings in Nevada and her predetention failures to drug test. In addition, Shahida had failed to appear for multiple drug tests, including court-ordered tests, between December 2014 and March 2015 despite the court's and the Department's efforts to provide convenient test locations. The Department also reported that Shahida had appeared at a testing facility in Nevada in December 2014 in connection with her ongoing dependency proceedings for her older children, but walked out after being told the test would be conducted using an oral swab, explaining she was not prepared to take that type of test. Shahida did appear at a testing facility in Tarzana on March 2, 2015 demanding to drug test, but, to her frustration, she was turned away. Social workers explained to her that random drug tests, by nature, cannot be scheduled at the election of the person required to test. At the time of the jurisdiction hearing, Shahida had failed to take a single drug test since the Department became involved in the case. The Department also reported that the juvenile court in Nevada had terminated reunification services due to Shahida's noncompliance with the case plan.

As to the allegations of her emotional instability, Shahida acknowledged to social workers she suffered from anxiety and depression, but denied it was untreated. She was under the care of a psychiatrist in Nevada who was treating her condition with medication. Shahida explained she had run out of her medication, but said she had a scheduled appointment with her psychiatrist to obtain more and planned to go to urgent care in California if necessary.

The court sustained each of the allegations in the petition, explaining, "[T]he Department was trying to give her a chance. And I think it's not just that she wasn't cooperative. I have to think she was actively trying not to cooperate because if she had drug-tested that would have provided evidence. ... [S]he was ordered by the Court in February to walk across the street and drug test. And she didn't do that. I mean that is completely, I think, indicative of her level of denial—well, denial of a problem or actual attempt to hide the problem. ... So I think that given all of the circumstances in this case, the whole totality of the situation, her past history, her history of refusing to be tested, her current level of noncooperation with the Department, and her defiance of a court order, it's pretty significant evidence that I believe she's hiding, trying to hide the fact that she's still using drugs." The court also found Shahida suffered from mental and emotional problems that, coupled with her drug use, also put Kadence at risk of harm. The court declared Kadence a dependent child of the court, removed her from parental custody and ordered family reunification services for both parents.

4. ICWA Findings

Initially, Shahida denied any Indian ancestry and on September 3, 2014 completed a questionnaire to that effect. However, on December 18, 2014, at the initial hearing on the amended section 300 petition, Shahida indicated that Kadence may be a member or eligible for membership in the Blackfeet Indian Tribe.³ The court ordered the Department to contact the maternal grandmother to confirm any Indian ancestry. On January 30, 2015 the maternal grandmother reported that her father's side of the family had Blackfeet Indian ancestry and recalled photographs of her father's ancestors in Indian dress.

She explained the maternal great-grandfather had died nine years earlier and she lacked any additional knowledge of Indian ancestry. She said she would call her brother to obtain additional information.

On February 4, 2015 the maternal grandmother reported that her brother, Ron Jones, had confirmed Creek Indian ancestry. Jones also told the Department directly that the maternal great-great-great-great-grandmother was "100 percent Creek" and the maternal great-great-great-grandmother was " ‘half white and half Seminole.’ " He was unsure about any Blackfeet ancestry. The Department asked the court to advise which tribes should be noticed based on the information obtained.⁴ On February 10, 2015 the court found the Department's information confusing as to Blackfeet ancestry.⁵ The court continued the adjudication hearing and ordered the Department to reinterview the family.

Robert also had initially denied any Indian ancestry on December 18, 2014, but on February 10, 2015 indicated...