L. A. Cnty. Dep't of Children & Family Servs. v. Chastity B. (In re Gabriella H.)

• Docket Number: B313276
• Decision Date: 12 August 2022
• Parties: IN RE GABRIELLA H. et al., Persons Coming Under the Juvenile Court Law. v. CHASTITY B. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

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IN RE GABRIELLA H. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHASTITY B. et al., Defendants and Appellants.

B313276

California Court of Appeals, Second District, Seventh Division

August 12, 2022

NOT TO BE PUBLISHED

APPEALS from orders of the Superior Court of Los Angeles County, No. 20CCJP01554 Annabelle G. Cortez, Judge. Affirmed and conditionally affirmed with directions.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant Chastity B.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant Ramon T.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.

SEGAL J.

INTRODUCTION

Chastity B. appeals from juvenile court orders denying two petitions filed under Welfare and Institutions Code section 388^[1]by Chastity's mother, Marlene B requesting a relative placement assessment under section 361.3 and placement of three of Chastity's four children with Marlene. The Los Angeles County Department of Children and Family Services and the court determined it was not appropriate to place the children with Marlene, in part because the juvenile court had previously sustained a section 300 petition alleging Marlene sexually abused Chastity's oldest child. We conclude that the juvenile court did not abuse its discretion in denying Marlene's section 388 petitions and that any error the juvenile court may have committed in not requiring the Department to prepare a formal assessment under section 361.3 or in applying section 388 to Marlene's request for placement was harmless.

Chastity and Ramon T., the father of one of Chastity's children also appeal from the juvenile court's disposition order concerning Chastity's youngest child and argue the Department did not comply with the inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law. We agree the Department did not comply with ICWA and related California law by failing to conduct an adequate inquiry into the child's possible Indian ancestry and to provide adequate notice to the relevant tribe. Therefore, we conditionally affirm the court's disposition order regarding Chastity's youngest child and direct the juvenile court to ensure the Department complies with its duties under ICWA and related California law.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Family Has a Prior History with the Department and the Juvenile Court

Chastity is the mother of four children: Isabella, who is 15 years old, and Gabriella, Gracie, and Hailey, who are all under the age of six (Hailey is two). Isabella's father is not the father of Chastity's other children and he, like Isabella, is not a party to these proceedings. Gabriella and Gracie's father is Moises H.; Hailey's father is Ramon.

In 2011 the juvenile court sustained a petition under section 300 filed on behalf of Isabella alleging Chastity and her mother Marlene sexually abused Isabella. The sustained petition alleged Chastity and Marlene fondled Isabella's vagina, took photographs of it, and posted the photographs online. The juvenile court terminated jurisdiction with a custody order awarding sole physical custody of Isabella to her father.

In 2016 the juvenile court sustained a petition under section 300 on behalf of Gabriella and Gracie alleging that Chastity and Moises had a history of substance abuse and that Chastity had not completed court-ordered programs in connection with the petition filed on behalf of Isabella. The court removed Gabriella and Gracie from Moises and released them to Chastity. After Chastity and Moises completed various classes and programs and Chastity submitted to weekly drug and alcohol testing, the court returned the children to their parents and terminated jurisdiction.

B. The Department Removes Gabriella, Gracie, and Hailey from Chastity and Files a Petition Under Section 300

In February 2020 Chastity, while 29 weeks pregnant with Hailey, admitted herself to a hospital after vomiting blood. She tested positive for marijuana, cocaine, and methamphetamine; she did not deny recent methamphetamine and marijuana use. Chastity told a case social worker Gabriella and Gracie were living with Marlene because Chastity was homeless. Marlene told the social worker Gabriella and Gracie (then five and three years old) had lived with her for two years. Marlene denied ever abusing Isabella, calling the previous juvenile proceeding a "custody issue," but she admitted she had a criminal history and child welfare history.^[2] Chastity went into labor several weeks later. Hailey was born with "complications with [her] breathing and needed treatment."

On March 4, 2020 a case social worker asked permission to enter Marlene's residence, but Marlene denied the social worker access to Gabriella and Gracie. Marlene told the social worker she could observe the children through a window, and the social worker informed Marlene that such limited access was not sufficient to assess the children's safety. The social worker returned with a law enforcement officer, but Marlene, though she was home, refused to answer the door. Marlene later called the social worker and gave her permission to enter the home. The social worker reported the children were physically healthy and developing age-appropriately.

On March 13, 2020 the juvenile court issued a removal order for Gabriella, Gracie, and Hailey. Gabriella and Gracie were placed one week later with their paternal grandparents, and Hailey was placed with her father, Ramon. The Department later detained Hailey from Ramon following his incarceration for a domestic violence incident involving Chastity.

Meanwhile, the Department filed a petition on behalf of Gabriella, Gracie, and Hailey alleging jurisdiction under section 300, subdivisions (b), (d), and (j). The Department alleged Chastity and Moises failed to make an appropriate plan for the safety and well-being of Gabriella and Gracie by allowing them to live with Marlene. Under subdivisions (b) and (j) the Department also alleged that Chastity and Moises had a history of substance abuse and that Ramon knew or should have known of Chastity's substance abuse. The Department filed a first amended petition adding allegations under section 300, subdivisions (a), (b), and (j), that Chastity and Ramon had a history of domestic violence and that Ramon had a history of substance abuse.

In its July 2020 jurisdiction and disposition report, the Department reported Gabriella was sad, cried often, threw tantrums, and said she should not be living with her grandparents. Gabriella blamed her grandparents for not letting her live with her mother and for why her mother did not call her. The Department reported Gracie had no mental or emotional issues and was adjusting well to her grandparents' home.

C. Marlene Files Multiple Section 388 Petitions, and the Juvenile Court Sustains the Section 300 Petition

Marlene filed several petitions under section 388 challenging the juvenile court's jurisdiction findings in the dependency proceedings involving Isabella and seeking placement of Gabriella, Gracie, and Hailey with her. The juvenile court denied the petitions with the exception of one filed on July 22, 2020, which the court set for a hearing. That petition asked the court to place the children with Marlene and to terminate jurisdiction because Chastity made an appropriate plan for the children by leaving them with Marlene. Marlene argued that the children "displayed sadness" because they missed her and that Chastity wanted the children to live with her, where (according to Marlene) they were thriving. Marlene argued that placing the children with her was in the children's best interest because she loved them and that the court never should have removed Gabriella and Gracie from her home.

In a last minute information the Department reported that on several occasions Marlene went uninvited to the home of the paternal grandparents (with whom, as stated, Gabriella and Gracie were placed). Marlene reportedly threatened to sue the paternal grandparents for taking Gabriella and Gracie from her, and she told the children to tell their attorney they wanted to live with her. The paternal grandparents asked for a restraining order against Marlene to protect themselves, Gabriella, and Gracie. Among other things, the paternal grandparents alleged Marlene stood outside their home for 90 minutes complaining loudly about Gabriella's and Gracie's medical care and threatening to call the Department. The record does not indicate whether a court ever issued a restraining order.

At the February 8, 2021 jurisdiction hearing the juvenile court stated that the jurisdiction findings in the proceedings involving Isabella were "res judicata" and that the court did "not have the power or the authority . . . to overrule or relitigate something that has already been finalized." The court sustained the count under section 300, subdivision (j), alleging Chastity and Moises "failed to make an appropriate plan for the children's safety and well being, in that the mother and father allowed the children to reside with maternal grandmother [Marlene], who sexually abused the children's maternal half-sibling .... The mother knew of the maternal grandmother's sexual abuse of the [children's] sibling and failed to protect the [children's] sibling. The children's maternal half sibling . . . is a prior Dependent of the Juvenile Court, due to the child's sexual abuse by the maternal grandmother and the mother's failure to protect. Such...