L. A. Cnty. Dep't of Children & Family Servs. v. M.M. (In re K.C.)
| Docket Number | B310516 |
| Decision Date | 14 January 2022 |
| Parties | In re K.C., a Person Coming Under the Juvenile Court Law. v. M.M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No 17CCJP02195A, Stephen C. Marpet, Judge Pro Tempore. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo Castro Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Senior Deputy County Counsel for Plaintiff and Respondent.
At a March 2018 hearing where appellant M.M. (mother) was not present, the juvenile court declared mother's twelve-year-old son K.C. (KC) a dependent under Welfare and Institutions Code section 300 and scheduled a permanency planning hearing without ordering reunification services for mother.[1] In November 2020, mother petitioned the court to vacate its March 2018 findings and orders under section 388 and Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481 (Ansley).[2] Mother argued the Los Angeles County Department of Children and Family Services (the Department) had given her improper notice of the March 2018 jurisdiction and disposition hearings. The juvenile court denied mother's petition, and she challenges this decision on appeal. We reject mother's arguments and affirm the order denying mother's section 388 petition.
KC was born in 2005, when mother was 15 years old. KC's biological father was murdered when KC was less than two years old, and mother feared gang retaliation. Sometime in 2011 or 2012, an older family friend named Phil began caring for KC. Phil moved to Los Angeles, taking KC with him. Mother gave Phil temporary custody of KC to protect KC from gang violence in Washington, D.C. Mother signed a notarized letter granting custody of KC to Phil, but the letter was never filed in any court. By early 2018, KC was 12 years old and still living with Phil, who was 78 years old. Mother was residing in Washington, D.C. with KC's half-brothers ages 5 and 7. Mother was employed with a monthly income of around $2, 000.
KC came to the Department's attention in March 2017 after he missed 22 days of school, and Phil did not respond to the school's multiple attempts to contact him. The Department took KC into protective custody in late November 2017 after KC was detained for spitting on a security guard and social workers were unable to locate or contact Phil or Phil's roommate.
On December 1, 2017, the Department filed a petition alleging under section 300, subdivisions (b) and (g), that mother's whereabouts were unknown, father was deceased and Phil was unwilling and unable to provide care and supervision for KC. Although the Department sent notice of the detention hearing by certified mail to a Washington, D.C address, it is unclear whether the address was mother's correct address at the time. Neither mother nor Phil were present at the detention hearing on December 4, 2017. The court appointed counsel for KC. The court ordered the Department to investigate KC's legal status and "properly notice [Phil] and the mother of the next court hearing." It also ordered monitored visits for Phil and mother, including phone contact with mother.
A social worker interviewed Phil on December 21, 2017. Phil reported he had been caring for KC since KC was young and did not intend to leave KC unsupervised. Phil offered explanations for his unavailability during the Department's initial investigation and for KC's school absences. Phil was unaware of KC's recent involvement with a gang, but did acknowledge that KC had started stealing clothes and missing school after a tagging incident with a group of older friends. Phil wanted KC returned to his care and was willing to comply with court reunification orders.
The social worker interviewed KC at school. KC reported Phil has always provided for him and took good care of him. He denied any neglect or abuse. When asked whether he wanted to return to mother in Washington, D.C., KC said he wanted to remain in Phil's care, as he was bonded to Phil and Phil was the person who has always taken care of him.
The Department was able to make contact with mother and learned her correct phone and address information.
Mother spoke with a social worker by phone on January 11, 2018. Mother was coherent, engaged and did not appear to be under the influence. Mother confirmed that she was confident in Phil's ability to care for KC. However, because Phil was getting older and she did not want to put too much stress on Phil, mother said she wanted KC back in her care. She planned to comply with court orders and reunify with KC. Mother reported she could not afford a plane ticket to Los Angeles and would not be able to make it to court unless the Department could pay for her airfare, nor could she take the time off work. Phil reported he would try to help mother pay for her plane ticket so she could show up in court. In a section of the jurisdiction and disposition report entitled "concurrent planning," the report states that mother was informed about concurrent planning and that if services were provided, mother would only have one year of services to show her commitment to reunification. Mother reported that she wanted Phil to be KC's caregiver unless he was unable to care for KC, in which case she wanted KC to be with family. There is no indication in the record that mother ever asked for the adjudication or disposition hearings (or any other hearings) to be continued so that she could appear. Nor is there any evidence that mother requested appointment of counsel for approximately two years, until after January 4, 2020.
The Department reported it might seek an order bypassing reunification services for mother under section 361.5, subdivisions (b)(9), (b)(14), and (g).[3] It recommended that the court grant no family reunification for mother, identify Phil as a de facto parent, and order reunification services for Phil, specifically parenting and gang awareness classes. On January 19, 2018, ten days before the scheduled January 29, 2018 jurisdiction and disposition hearing, the Department sent to mother by first-class mail a notice of hearing, together with the petition and the Department's jurisdiction and disposition report. The same materials were mailed to Phil at his Los Angeles address. The notice included among several advisements that
By February 2018, KC was living with foster parent D.B., with whom KC would continue living for the next 18 months. Also in February 2018, the court granted Phil's request for de facto parent status, appointed an attorney to represent Phil in the proceeding, and ordered unmonitored visits for Phil.
The jurisdiction and disposition hearing was continued a number of times, eventually taking place on March 27, 2018. Mother was not present, and the court did not appoint counsel to represent her. Phil's appointed counsel was present, but Phil was not. The court sustained amended allegations, finding KC to be a dependent under section 300, subdivisions (b)(1) and (g), and ordering him removed from mother's custody. The court ordered no family reunification services for mother.[4] The court also scheduled a 366.26 permanency planning hearing.[5] The court granted Phil unmonitored day visits, with the Department having discretion to liberalize visitation.
KC did well in his placement with D.B., making positive progress by meeting with a therapist and rehabilitation specialist weekly and participating in child and family team (CFT) meetings every two to three months. Mother was not listed as a participant in CFT meetings other than an initial CFT meeting in April 2018. KC maintained contact with mother by telephone, and had a large support team that included mother. KC had twice weekly unmonitored day visits with Phil.
At the initial CFT meeting in April 2018, Phil and mother participated by phone while KC participated in person. KC's goal was to reunify with Phil, and the team created a plan to work towards that goal. KC admitted to using prescription cough syrup during a visit with Phil, and returning to his placement while under the influence.
At a June 2018 CFT meeting, KC wanted to remain with D.B. until he was able to return to Phil's care, but Phil had not been able to secure stable housing, a requirement to move forward with obtaining a Relative Family Approval (RFA) assessment. KC requested that visits with Phil take place outside the Boyle Heights and East Lost Angeles areas, because the environment and easy access to drugs could contribute to his engaging in risky behaviors.
In August 2018, Phil missed a CFT meeting because he missed the train and did not respond to attempts to call him so he could participate by phone. The meeting focused on KC's goal of reunifying with Phil and acknowledging that Phil might not be able to find stable housing in a location that is safe for KC and might not be able to safely supervise KC.
By October 2018, Phil had obtained stable housing and began the RFA assessment process so that KC could move in with him. The CFT team expressed concern that Phil's new home was close to where KC had previously affiliated with gangs, but Phil believed he could keep KC...
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