L. A. Cnty. Dep't of Children & Family Servs. v. Leah G. (In re Ashley M.)
|02 May 2023
|In re Ashley M. et al., Persons Coming Under the Juvenile Court Law. v. LEAH G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
|California Court of Appeals Court of Appeals
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. 18CCJP06266 Mary E. Kelly, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Leah G. (Mother) challenges the juvenile court's orders terminating her parental rights to three of her children Ashley M., Sara M., and Clarissa M., pursuant to Welfare and Institutions Code section 366.26. The children's father, John M. (Father), is not a party to this appeal. Mother argues the juvenile court should not have terminated parental rights because the beneficial relationship exception to termination, described in section 366.26, subdivision (c)(1)(B)(i), applied. Mother also argues the court erred when it found it had no reason to know the children were "Indian children," as defined by the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) without the Los Angeles County Department of Children and Family Services (DCFS) first having inquired of paternal great-grandmother and paternal aunt about their Indian ancestry.
DCFS argues that although Mother had the burden to demonstrate the beneficial relationship exception applied, she remained silent when the juvenile court sua sponte inquired about the exception, and therefore forfeited the issue on appeal. DCFS further argues that even if we consider Mother's argument on the merits, the exception does not apply. Finally, DCFS does not oppose Mother's request that we remand the matter to permit DCFS to conduct an ICWA inquiry of paternal relatives.
We decline to treat the issue of the beneficial relationship exception as forfeited due to unique factual circumstances present in this matter, including the juvenile court's thorough analysis of the issue. Nonetheless, Mother has not established that the court reversibly erred in rejecting the beneficial relationship exception. Even assuming the record compelled the conclusion that Mother regularly visited the children and shared a substantial positive emotional attachment with them, the juvenile court did not abuse its discretion in finding the benefits of placement in their prospective adoptive home outweighed any detriment to the children from terminating that attachment. As for ICWA, we do not agree with the parties that a limited remand is warranted for additional ICWA inquiries because such inquiries are unlikely to uncover information that would bear meaningfully on whether the children are Indian children. We therefore affirm the juvenile court's orders terminating parental rights to the children.
In August 2018, Mother, Father, and their five children, Alana M. (born 2001), Raquel M. (born 2003), Ashley (born 2008), Sara (born 2009), and Clarissa (born 2015), came to the attention of DCFS following a referral alleging that, among other things, the parents used illegal substances. On September 11, 2018, Father tested negative for all substances; however, Mother tested positive for methamphetamine and amphetamine. DCFS detained the children and placed them with caregivers through a foster agency.
On September 28, 2018, DCFS filed a petition pursuant to section 300, subdivision (b)(1) alleging the children had suffered or were at substantial risk of suffering serious harm as a result of Mother's substance abuse, Father's failure to protect the children, and the parents permitting an unrelated adult (Sophia) who reportedly abused substances to reside in the home and have access to the children.
On October 1, 2018, the juvenile court ordered the children detained from their parents and that the parents have monitored visitation with the children.
During its investigation, DCFS obtained prior child welfare reports indicating the juvenile court had temporarily removed Alana, Raquel, Ashley, and their half-sibling K.G. from Mother and Father in 2009 due to, among other things, Father's substance abuse and that in 2015, Mother tested positive for methamphetamine. On October 26, 2018, DCFS amended the section 300 petition to include allegations that Father had a 10- year history of drug use, had a warrant issued for his arrest in July 2015 for prior drug convictions, and had been arrested in April 2017 for "[p]ossession/[u]se" of a controlled substance.
On February 7, 2019, the juvenile court sustained the first amended section 300 petition and removed the children from Mother's and Father's custody. The court ordered unmonitored visitation for the parents and for DCFS to assess paternal aunt, Linda M., for overnight visitation.
During the period between the children's initial detention and the disposition hearing, Mother maintained regular contact with the children. In October 2018, Mother visited with the children at a mall or park for six hours each week.
On November 28, 2018, the juvenile court ordered that DCFS report the nature and quality of the visits between the children and the parents. The juvenile court also ordered DCFS to make efforts to facilitate monitored visitation with the children on Christmas.
In a last minute information (LMI) for a hearing scheduled for February 5, 2019, DCFS reported that except for one instance, Mother visited the children once a week, on Saturdays from 12:00 to 6:00 p.m. at a shopping mall. Father, who stated he had two fractured lower back discs and was disabled due to chronic back pain and obesity, missed some visits and sometimes asked Mother to take him home early. Mother would do so and then return to visit with the children alone. The parents were not able to visit with the children during Christmas. Linda, who was to facilitate the visit, did not feel comfortable having Mother and Father in her home; Father did not feel comfortable meeting in a public setting.
Between January 2019 and July 8, 2019, Mother tested negative for substances 18 times and did not miss any tests. She also completed a 12-week parenting course.
Father was arrested on March 4, 2019. Between January 3 and May 2, 2019, he tested negative for substances three times, had no positive results, and missed six tests. In June 2019, Father informed DCFS that he would not appear for any more drug tests. In July 2019, Father told DCFS that he would not attend any court-ordered programs. Throughout the remainder of the proceedings, Father did not submit to any drug testing or participate in his case plan.
In July 2019, DCFS observed that although Mother made significant progress in her case plan, she had not gained independence or ability to provide a safe and stable environment for her children as she continued to live and have a relationship with Father. DCFS also reported that Linda, who had overnight visits with the children twice a month, expressed an interest and willingness to take legal guardianship of the children if they did not reunify with their parents.
At an August 8, 2019 status review hearing, the juvenile court found progress by the parents was substantial, but that continued reunification services and jurisdiction were necessary. After Mother indicated she might move to Kansas to live with maternal grandfather, David G., and maternal aunt, Toni G., the juvenile court ordered DCFS to initiate an Interstate Compact on the Placement of Children (ICPC) evaluation of maternal grandfather and maternal aunt.
On January 17, 2020, DCFS reported Mother was in compliance with her case plan and court-ordered programs. She tested negative for substances 23 times over a five-month period and did not miss any tests. However, she continued to live with Father, and DCFS reported it could not recommend the children be returned to the parents until they were able to provide a safe and stable environment.
On February 6, 2020, the juvenile court found Mother was in substantial compliance with the case plan and the only barrier to her reunification with the children was Mother obtaining housing separate from Father. It ordered a housing assessment referral for Mother to receive a Family Reunification Housing Subsidy (FRHS), that the suitable placement order remain in effect until she obtained new housing, and that the children be released to Mother's custody within five days of her obtaining permanent housing. The juvenile court also ordered Father not to reside with Mother.
On March 16, 2020, DCFS reported Mother was assigned a case manager for housing assistance, "but is currently on a waiting list." On February 21, 2020, Mother disclosed she continued to live with Father and paternal family and that she did not have anywhere to go until FRHS was available. The social worker ...
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