L. A. Cnty. Dep't of Children & Family Servs. v. Susie R. (In re Adrian L.)

• Decision Date: 14 December 2022
• Docket Number: B318627
• Citation: 86 Cal.App.5th 342,302 Cal.Rptr.3d 317
• Parties: IN RE ADRIAN L., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Susie R., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

86 Cal.App.5th 342

302 Cal.Rptr.3d 317

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

v.Susie R., Defendant and Appellant.

B318627

Court of Appeal, Second District, Division 1, California.

Filed December 14, 2022

Emery El Habiby, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.

KELLEY, J.^*

Susie R. (Mother) appeals from the juvenile court order terminating her parental rights to her child Adrian L. pursuant to Welfare and Institutions Code section 366.26.¹ She contends the Los Angeles County Department of Children and Family Services (DCFS) did not comply with its duty under section 224.2, subdivision (b) to inquire of extended family members, including maternal grandmother, paternal grandmother, and paternal aunt, regarding Adrian's potential status as an Indian child as defined in the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq. ). Thus, she argues, DCFS did not "adequately investigate[ ]" Adrian's Indian status, and we should reverse the juvenile court's order terminating Mother's parental rights and remand the matter for ICWA compliance.

DCFS argues we should hold that any error in failing to interview extended family members was harmless because the record does not demonstrate that any such inquiry would bear meaningfully on the question of whether Adrian is an Indian child.²

In light of the facts in the record, which include the parents’ denials of Indian affiliation, as well as extensive efforts by Mother, Mother's counsel, extended family members, and minor's counsel, to have Adrian placed with the extended family members, we conclude additional inquiry would not have yielded information that was likely to bear meaningfully on the question of whether Adrian is an Indian child. Accordingly, any failure to inquire of extended family members was harmless. We thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND³

A. Petition and Non-detention

In February 2019, Mother, newborn Adrian, and maternal grandmother resided together in Duarte, California. Adrian L. Sr. (Father), lived in Las Vegas, Nevada.

On February 13, 2019, DCFS received a referral relating to Adrian. The referral concerned Mother's history of substance abuse and her failure to reunify with Adrian's three older half-siblings, who were dependents of the juvenile court and receiving permanent placement services. On March 15, 2019, a foster care provider finalized adoption of these siblings.

On March 25, 2019, DCFS filed a petition on behalf of Adrian pursuant to section 300, subdivisions (b)(1) and (j).

At the March 26, 2019, detention hearing, the juvenile court found a prima facie case that Adrian was a child described under section 300 and, finding services were available to prevent detention, ordered Adrian released to Mother under DCFS supervision. The juvenile court also found Adrian Sr. to be the presumed father.

B. Jurisdiction and Disposition

On May 15, 2019, the juvenile court held a combined jurisdictional and dispositional hearing. At the hearing, the juvenile court sustained an amended count under section 300, subdivision (b)(1), relating to Mother's substance abuse. It ordered Adrian removed from Father's custody and released to Mother with the provision of family maintenance services.⁴

Through September 2020, Mother and Adrian moved between maternal grandmother's home and inpatient substance abuse programs or sober living residences.

C. Proceedings Following Subsequent and Supplemental Petitions and Detention

Adrian remained with Mother until October 2, 2020, when the juvenile court granted DCFS's request for an expedited removal order pursuant to section 340, subdivision (b). DCFS filed a subsequent petition alleging Mother had mental and emotional problems, including suicidal ideation, as well as a supplemental petition seeking foster placement due to Mother testing positive for amphetamine and methamphetamine.

On October 9, 2020, the juvenile court ordered Adrian detained from Mother. Additionally, it ordered DCFS to assess the maternal grandmother, paternal grandmother, and paternal aunt for placement.⁵ In the meantime, DCFS placed Adrian with a foster mother.

On January 20, 2021, Mother entered a no contest plea, and the juvenile court sustained allegations of suicidal ideation and recent substance abuse. The juvenile court ordered DCFS to assess maternal grandmother for placement. The following day, Mother reported to the social worker that she no longer wanted to participate in a particular outpatient substance abuse program, and she wanted a family member to adopt Adrian.

In an April 7, 2021, last minute information (LMI), DCFS reported that Father died after he had been stabbed multiple times at the maternal grandmother's home in February 2021. Mother was arrested for his homicide.

In the LMI, DCFS also reported its findings relating to relative placement. DCFS recommended against placing Adrian with maternal grandmother because she had allowed Father to have unmonitored contact with Adrian in violation of court orders and was not forthcoming about Father's whereabouts. Also, the maternal uncles who lived in maternal grandmother's home hosted parties, which had the effect of triggering Mother to relapse into drug use. Further, maternal grandmother worked full time, and thus maternal uncles would have had to care for Adrian. The social worker noted she had observed one of the maternal uncles "high" and smelling of marijuana.

On April 7, 2021, the juvenile court ordered DCFS to interview Mother, maternal grandmother, and maternal uncle about Adrian's placement and to assess placement of Adrian "with any appropriate relative." It also ordered monitored visitation for maternal grandmother and a maternal uncle.

In a May 18, 2021, LMI, DCFS reported its most recent findings relating to relative placement. Mother wanted Adrian placed with the same legal guardian with whom Adrian's two minor half-siblings were placed. Maternal grandmother and maternal uncle renewed their desire to have Adrian placed with them. Also, a paternal aunt, Veronica G. (Veronica), who lived with paternal grandparents, had visited Adrian since his birth, and had acted as a monitor for Adrian's visits with Father, sought to have Adrian placed with her.⁶ DCFS also reported that another paternal aunt, Claudia M. (Claudia), expressed interest in caring for Adrian, whom she had met for the first time at Father's funeral.

In July 2021, DCFS approved Veronica for placement. Because she worked three jobs and had other children in the home during the summer, Veronica was unable to commit to taking Adrian to continued developmental assistance services and could not immediately provide a date on which she would begin to host him overnight. DCFS reported it would conduct a further assessment relating to placement with Veronica. The foster mother continued to express interest in having Adrian placed with her.

At the August 5, 2021, six-month review hearing, the juvenile court found Mother's progress had not been substantial, terminated family reunification services, and scheduled a section 366.26 permanency planning hearing.

On August 10, 2021, Mother filed a notice of intent to file a writ petition contesting the juvenile court's order scheduling a section 366.26 hearing. Mother did not file the writ petition, however, and it was deemed non-operative.

On September 10, 2021, minor's counsel filed a walk-on request with the juvenile court as well as a section 388 petition. Minor's counsel stated, "DCFS has stopped overnight visits with the paternal aunt [Veronica], who I understood was moving toward placement with the minor. I was not provided with an explanation and ha[ve] since been in contact with the aunt, who states she was not given an explanation and has been working toward placement with the minor .... The child is in foster care and is in need of a permanent plan that includes a relative before the next court date if she is to be considered." Minor's counsel argued, "[s]ection 361.3 provides that preferential consideration be given to relative placements." Minor's counsel requested that the juvenile court, "[r]einstate overnight visits and placement assessment for the paternal aunt."

On October 29, 2021, Veronica sent a letter to the juvenile court, challenging DCFS's characterization of her lack of ability and interest in providing a home to Adrian.

In a report filed November 2, 2021, DCFS repeated its reasons for concluding that maternal grandmother's home was not a good option for placement. As to Veronica, DCFS reported she would request time off from work to ensure Adrian's needs were met. However, she was unwilling to take Adrian to visit maternal relatives or Mother in jail. DCFS concluded that, notwithstanding Veronica's current commitment to provide all the required care for Adrian, Adrian, who had special developmental needs, "would not receive the same committed and detailed care" in Veronica's home as he did with the foster mother with whom he had lived since October 2020. Moreover, Adrian's doctor reported concern that Adrian would "regress" if removed from the caregiver and placed with Veronica. Thus, DCFS recommended Adrian remain placed with the foster mother.

On November 4, 2021, minor's counsel withdrew the section 388 petition.

On November 24, 2021, Mother's counsel filed a section 388 petition, noting her successful completion of multiple programs. She requested that Adrian reside with the maternal grandmother while Mother remained incarcerated or, in the alternative, that Mother's family reunification services be reinstated.

On November 29, 2021, the parties appeared before the juvenile court for the section 366.26 hearing. At that time, the juvenile court denied...