Riverside Cnty. Dep't of Pub. Soc. Servs. v. J.H. (In re J.H.)
| Decision Date | 22 February 2023 |
| Docket Number | E078629,E078813 |
| Parties | In re J.H., a Person Coming Under the Juvenile Court Law. v. J.H., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, In re J.H., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. R.H., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ2000631 Cheryl C. Murphy, Judge. Affirmed in part; reversed in part with directions.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant, J.H.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant, R.H.
Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel for Plaintiff and Respondent.
SLOUGH ACTING P.J.
This appeal concerns the paternal grandmother's attempt to have her medically fragile grandson, J.H., placed with her. Father and grandmother separately argue the juvenile court judge, Riverside County Superior Court Judge Cheryl C Murphy, erred by not giving her preference for placement as a relative under Welfare and Institutions Code section 361.3 (unlabeled statutory citations refer to this code) and denying father's section 388 petition to change the order placing J.H. with his foster caregivers, and prospective adoptive parents, in favor of placement with grandmother. We conclude the trial judge erred by holding the relative placement preference didn't apply, but conclude the error was harmless.
Father also argues we should reverse the order that ICWA doesn't apply to J.H.'s case because the Riverside County Department of Public Social Services failed to fulfill its duty of initial inquiry under state law implementing the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; Welf. &Inst. Code, § 224.2, subd. (b).) We agree and therefore vacate the findings and remand for a new ICWA finding after the juvenile court is satisfied the department has discharged their duty of inquiry.
I FACTS
This dependency arose after the Riverside County Department of Public Social Services (department) received a referral about possible neglect of newborn J.H., who was hospitalized in the Neonatal Intensive Care Unit (NICU).
On October 13, 2020, a social worker observed the baby in the hospital. He remained in NICU because he was premature. The social worker attempted to contact the parents at the hospital, but staff told her they hadn't returned since mother's discharge on October 7 and didn't stay in communication with them. The child was receiving formula through a nasogastric tube (NG tube). Hospital staff said the parents still needed to be taught how to use the NG tube.
The social worker later reached mother by phone. Mother acknowledged she drank alcohol throughout her pregnancy. She also said she hadn't received prenatal care and didn't plan to participate in services. She said she would not submit to a drug test because she had already admitted to drinking alcohol. Though she had a black eye on October 6, 2020, she denied any domestic violence and denied needing domestic violence classes. She also reported she didn't have Native American ancestry.
The social worker contacted father by phone as well. Father admitted he had a history of drug use and had been incarcerated for drug possession but denied needing substance abuse services. He said he was aware mother drank during her pregnancy. He acknowledged being intoxicated at the hospital on October 7 and being asked to leave. Like mother, he said he didn't have Native American ancestry.
The next day, the paternal grandmother told the social worker the parents lived in her home. She said she knew mother drank during her pregnancy and said the parents fight a lot. She said she was concerned about father's substance abuse. She told the social worker she couldn't take the child and couldn't provide a support system for the parents and the child because she works during the day. She said she already served as guardian of the father's older child. She said she didn't know of any relatives who could take custody of the child.
The department detained the child from the parents. On October 16, 2020, they placed him with his future prospective adoptive parents and filed a section 300 petition alleging the parents had neglected him due to domestic violence and substance abuse.
At the detention hearing three days later, both parents filed ICWA-020 Parental Notification of Indian Status forms, indicating they don't have any Native American ancestry, and father repeated that denial on October 28. The trial court made temporary detention findings against the parents and ordered twice-weekly supervised visits. The judge continued the detention hearing so father could be transported from jail, and the next day found father to be J.H.'s presumed father and adopted the temporary detention findings as permanent.
At the hearing, father named the paternal grandmother and a nonrelated extended family member, D.G., as potential placement options. The judge ordered the department to assess D.G. for placement. On October 29, 2020, the department sent a Resource Family Approval (RFA) application to D.G. for placement evaluation. On November 16, 2020, D.G. was denied emergency placement of the child while the exemption process was pending.
At the contested jurisdiction hearing on December 9, 2020, the trial judge found all but two of the allegations against the parents true. The judge found the department had conducted a sufficient inquiry about the child's Native American ancestry and determined ICWA doesn't apply. The judge made J.H. a dependent of the court, removed the child from the parents' physical custody, and ordered family reunification services.
In January 2021, the paternal grandmother asked to be evaluated for placement, and an RFA referral was submitted on her behalf the next day. The department mailed an application to her, and she was given 30 days to return it. However, on March 8, 2021, the paternal grandmother told the social worker she would not submit the application. The social worker explained that would mean closing the referral, and the grandmother said she would like D.G.'s application to be approved before continuing with her own. A week later, the grandmother sent a text message saying she had changed her mind and would fill out an RFA application. However, by then the RFA unit had already reported they hadn't received her application.
At the six-month status review hearing, the department recommended the judge terminate the parents' reunification services and set a section 366.26 hearing. Mother's whereabouts were unknown and father was incarcerated and awaiting sentencing for a number of convictions, including one for domestic violence. At the time, a criminal protective order restrained father from having contact with mother until October 2023. Father had attended anger management and substance abuse services while in custody, but his work was found to be unacceptable.
The judge ordered in-person visits between J.H. and his paternal grandmother and ordered the department to contact her about a placement assessment. The department contacted the grandmother the same day to establish whether any other adults lived in her home. She provided the social worker with her husband's information and they submitted an updated referral to the RFA unit. The grandmother had until July 14, 2021 to submit her application.
Meanwhile, on July 29, 2021, the caregiver filed a request for de facto parent status. The caregiver said J.H. had lived with her from October 16, 2020 to July 23, 2021. She said she cared for the child's everyday needs, took him to doctor appointments and therapy sessions, advocated for him about his developmental delays, and generally provided love for the child. She said she had tried to schedule video visits with the paternal grandmother for several months without success. She reported J.H. met the paternal grandmother for the first time in person on June 17, 2021 and visited him again on July 15 and 22, 2021. He cried consistently through these visits.
The caregiver said she was very concerned about J.H.'s condition and development. She reported he exhibited "constant head jerking and un-usual eye blinking." She took him to a neurologist, and the doctor ruled out seizures. An occupational therapist then discovered J.H. suffered from ankyloglossia (tongue-tie), which can limit the ability to eat, and it was determined he would need surgery to correct the condition. J.H. had a second medical consultation regarding his tongue tie on July 14, 2021. The caregiver notified the grandmother about J.H.'s medical appointment, but she didn't come and didn't ask about the child's health or development during visits.
The grandmother completed all aspects of the RFA process. However, on August 17, 2021, the RFA unit reported the paternal grandmother's husband has a criminal history that requires an exemption for placement to proceed. They also reported the assessment of D.G. had been closed because they received no response from her. D.G. said she didn't know if she wanted to continue because the paternal grandmother was being assessed.
On August 23, 2021, the father filed a section 388 petition asking the court to make a direct placement of the minor with the paternal grandmother. Father said circumstances had changed because the paternal grandmother now wanted placement. He said placement with the grandmother is in the child's best interest because she is the legal guardian of his half sibling. In a letter to the court, the grandmother...
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