L. A. Cnty. Dep't of Children & Family Servs. v. Kimberly S. (In re Vict. A.)
| Docket Number | B322340 |
| Decision Date | 04 August 2023 |
| Parties | In re Victoria A., a Person Coming Under the Juvenile Court Law. v. Kimberly S., 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NOT TO BE PUBLISHED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 18CCJP04937, Mary E. Kelly, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Kimberly S.
Tarkian &Associates and Arezoo Pichvai for Plaintiff and Respondent.
Kimberly S. appeals from the juvenile court's order terminating her parental rights to her five-year-old daughter Victoria A under Welfare and Institutions Code section 366.26.[1]Kimberly argues the juvenile court erred in finding the parental-benefit exception to adoption (§ 366.26, subd. (C)(1)(b)(i)) did not apply because, in her view, the evidence supported a finding Victoria had a strong positive attachment to her and the court did not correctly apply the legal standard in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). Kimberly also argues the court erred in finding the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) did not apply. Because the court did not prejudicially err in making either finding, we affirm.
When Victoria was born in July 2018, she tested positive for methamphetamine and amphetamine. A social worker from the Los Angeles County Department of Children and Family Services interviewed Kimberly, who stated that she used methamphetamine two or three months before delivering Victoria and that she "might have been around people who had been using." Michael A., Victoria's father, told the social worker that he was "a meth user" and that he took "a few hits" of methamphetamine "every morning," but that he would not "use meth anymore." A few days later Kimberly, with Victoria, checked herself into an inpatient substance abuse treatment center.
The Department filed a petition under section 300, subdivision (b), alleging (1) Kimberly's substance abuse placed Victoria at substantial risk of serious physical harm; (2) Kimberly's history and current use of methamphetamine interfered with her ability to provide regular care and supervision for Victoria, and (3) Michael's substance abuse rendered him incapable of providing regular care and supervision for Victoria. The court detained Victoria from Michael and released her to Kimberly on the condition that Kimberly remain in the inpatient substance abuse treatment program or, if she completed the program, that she reside with her mother, Maribel O. The court warned Kimberly that, if she left the program without completing it or did not test clean, the court would remove Victoria from her care.
On September 26, 2018 Kimberly and Michael pleaded no contest to the allegations in the petition as amended,[2] and the court declared Victoria a dependent child of the court. The court removed Victoria from Michael, released her to Kimberly, and ordered Kimberly to complete parenting classes and extensive drug rehabilitation.
One month later, Kimberly completed her residential substance abuse treatment program and moved with Victoria into Maribel's home. Eight months after that, the Department observed that Kimberly had complied with her case plan and court-ordered programs and that Victoria appeared happy and "very well cared for by her mother." The Department recommended the court terminate jurisdiction and grant joint legal (with Michael) and sole physical custody of Victoria to Kimberly.[3]
One month later, Kimberly experienced a relapse and tested positive for amphetamine and methamphetamine. The social worker also discovered that Kimberly no longer lived with Maribel, which, as stated, was a condition the juvenile court had imposed when the court released Victoria to Kimberly. The Department filed a supplemental petition under section 387, alleging Victoria failed to comply with the court's orders. On July 19, 2019 the court detained Victoria from Kimberly and placed her with Maribel. The court ordered monitored visitation for Kimberly for a minimum of three times per week for three hours each visit. Two months later, the court sustained the allegations in the supplemental petition and removed Victoria from Kimberly.
At the six-month and 12-month review hearings (§ 366.21, subds. (e), (f)), the juvenile court found Kimberly's progress toward alleviating or mitigating the causes necessitating placement of Victoria outside her home had "not been substantial." The Department's status reports included multiple positive toxicology test results. The court concluded returning Victoria to Kimberly would create a substantial risk of detriment and maintained Victoria's placement with Maribel. On October 16, 2020 the court terminated reunification services for Kimberly and set the matter for a selection and implementation hearing under section 366.26.
As Kimberly struggled to maintain sobriety, she also failed to have consistent, quality visits with Victoria. For the first few months after the court removed Victoria from her care, Kimberly visited Victoria three times a week and was "loving and attentive" with her; Victoria "showed a preference toward [Kimberly] and appeared comfortable in her arms." The social worker reported, however, that by February 2021 Kimberly's visits had "become less frequent and consistent as time has passed." Maribel reported that, during visits, Victoria was not "receptive" to Kimberly and did not "show any signs of distress" when Kimberly left. The social worker observed Kimberly interacted "generally well with Victoria," except when Kimberly would "ignore Victoria to use her cellphone." The social worker stated Victoria appeared "very bonded" to Maribel and called her "'Mama.'"
In the winter of 2021 Kimberly gave birth to a baby boy, Izaiah S. The Department placed Izaiah with Jose S. (Victoria's maternal grandfather), who shared a home with Maribel (and Victoria).[4] Because Kimberly could visit both children at the same time, her visits became more consistent. According to Maribel, Victoria became "very jealous when anyone in the home [gave] Izaiah too much attention." Maribel stated she had to "redirect" Kimberly if she ignored Victoria and used her cellphone or focused on Izaiah. Maribel said Kimberly had "little patience" for Victoria and did not seem able to "redirect" her in an "age appropriate manner."
One morning in June 2021 Izaiah ingested amphetamine and had to be hospitalized. In investigating this incident, the social worker discovered Maribel had violated the juvenile court's order by allowing Kimberly to visit Victoria without a court-approved monitor. Maribel admitted to the social worker that Kimberly visited Izaiah without any supervision that morning, that Kimberly spent the night in her home on two previous occasions (while Victoria was present), and that Maribel had left Victoria alone with Victoria's maternal great-grandmother (who was not an approved monitor).
On June 9, 2021 the social worker placed Victoria in the home of Angelica S., Victoria's maternal great aunt. The Department filed a supplemental petition under section 387, alleging Maribel failed to comply with the court's order (for monitored visitation), which endangered Victoria's physical health and safety and placed her at risk of serious physical harm. The court vacated its order placing Victoria in Maribel's home.
In the first few months of Victoria's new placement, Kimberly visited only "sporadically," often canceled visits, and failed to confirm her visits with the social worker. Kimberly explained to the social worker that she could not visit consistently because she had to "'run errands,'" did not want the visits to take place at the park, or did not have transportation (the social worker said she had offered Kimberly a bus pass). The social worker observed Victoria did not appear "extremely attached" to Kimberly and did not show an "excessive amount of distress" when visits ended.
By November 2021 Kimberly was visiting Victoria once a week and often "cut her visit short." Kimberly said she was "happy just to see her children briefly." The social worker observed Victoria enjoyed "taking up all of her mother's attention."
Four months later, in a report summarizing Kimberly's visitation, the social worker reiterated her prior observations that Kimberly's visits had become inconsistent and that Kimberly frequently did not confirm visits, occasionally missed visits, and "[m]ore often than not" cut the visits short. The social worker stated that Victoria, while "familiar" with Kimberly, did not react to Kimberly when she left the visits, although Angelica observed in January 2022 that Victoria appeared "attached" to Kimberly and got "upset" when Kimberly left. In a subsequent report the social worker concluded that Victoria did not appear "to be well-bonded" with Kimberly and seemed more entertained with the food Kimberly brought or the slides at the park and that Kimberly focused more on Izaiah during the visits. In her final report before the selection and implementation hearing, the social worker stated the visits occurred only once or twice a week and, at Kimberly's request, did not last the full length of the time allocated for the visit.
Victoria's adjustment to her new placement, according to Angelica, was not "without challenges." But by February 2022 Victoria had "become attached" to Angelica and her husband, Mr. S., and...
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