San Bernardino Cnty. Children & Family Servs. v. Kimberly L. (In re Albert A.)

• Decision Date: 14 January 2016
• Docket Number: E063869
• Citation: 243 Cal.App.4th 1220,197 Cal.Rptr.3d 619
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE ALBERT A. et al., Persons Coming Under the Juvenile Court Law. San Bernardino County Children and Family Services, Plaintiff and Respondent, v. Kimberly L., Defendant and Appellant.

243 Cal.App.4th 1220

197 Cal.Rptr.3d 619

IN RE ALBERT A. et al., Persons Coming Under the Juvenile Court Law.San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.Kimberly L., Defendant and Appellant.

E063869

Court of Appeal, Fourth District, Division 2, California.

Filed January 14, 2016

Certified for Partial Publication.^*

Rosemary Bishop, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean–Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

I.INTRODUCTION

Kimberly L. (mother) appeals from orders under Welfare and Institutions Code ¹ section 366.26 terminating her parental rights to Albert A. (A.A.) and Veronica A. (V.A.) (the children). Mother contends: (1) the juvenile court's jurisdictional orders finding the children were dependents within the meaning of section 300, subdivision (b)(1), were not supported by substantial evidence; (2) the juvenile court abused its discretion by terminating reunification services and setting a section 366.26 permanency planning hearing; (3) the juvenile court abused its discretion by denying mother's request to continue the permanency hearing to allow her time to file a petition under section 388 requesting additional reunification services; (4) the juvenile court's orders finding the children were likely to be adopted were not supported by substantial evidence; and (5) the juvenile court erred by concluding legally sufficient notice was provided to relevant Indian tribes pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. ; ICWA).

Respondent San Bernardino County Children and Family Services (CFS) argues mother waived her right to challenge the jurisdictional orders by not appealing from the dispositional orders, and mother waived her right to challenge the orders terminating reunification services by not filing a petition for extraordinary writ challenging the orders setting a permanency hearing. CFS contends the juvenile court did not abuse its discretion by not continuing the permanency hearing. Although CFS concedes the juvenile court did not consider a possible legal impediment to the children being adopted by their paternal grandmother, CFS contends the court correctly found they were likely to be adopted. Finally, CFS concedes the ICWA notice was inadequate and that a conditional reversal and limited remand to provide adequate notice is appropriate.

In the published portion of this opinion, we conclude mother waived her claim of error regarding the jurisdictional orders by not appealing from the dispositions. Mother was absent from the continued jurisdictional hearing and was not entitled to notice of her right to appeal under California Rules of Court, rule 5.590(a).² Because we conclude the juvenile court did not provide mother with timely and adequate notice of her right to challenge the orders setting a permanency hearing, as mandated by rule 5.590(b), mother did not waive her claim of error respecting the termination of reunification services.

In the unpublished portion of this opinion, we conclude the juvenile court did not abuse its discretion by terminating reunification services or by denying a request to continue the permanency hearing because mother did not comply with her case plan and did not visit with the children. However, we agree with mother that the juvenile court erred by not considering legal impediments to the children being adopted by their paternal grandmother when it found the children were likely to be adopted, and we agree with mother and CFS that the ICWA notice was inadequate. Therefore, we reverse the orders terminating parental rights and remand for the juvenile court to consider legal impediments to the children being adopted, for CFS to provide new ICWA notice, and for the juvenile court to determine whether that notice is sufficient.

II.FACTS AND PROCEDURAL HISTORY

A. Referral to CFS and Detention

CFS received a referral alleging general neglect of the children when mother appeared at V.A.'s elementary school and acted strangely. Mother requested V.A. be called from her classroom so mother could take her to juvenile hall. The school principal reported the incident to law enforcement. V.A. told school officials that earlier in the morning mother told her to change her clothing because she did not approve of her jeans. V.A. said mother became irate, grabbed her, and tried to force her into mother's car to take her to juvenile hall. The children's father³ intervened and told V.A. to run to school. Mother admitted to the school principal she was under the influence of methamphetamines. Law enforcement officers who responded also observed mother was under the influence of methamphetamines, and placed her under arrest. The referral also stated both mother and the father used methamphetamines and lived in the children's paternal grandmother's garage.

The paternal grandmother told the social worker she was concerned about the children's welfare because the parents used drugs and would leave for days at a time without telling the paternal grandmother when they would return or how they could be contacted. The parents would leave the children in the paternal grandmother's care, but would not provide resources or provisions for the children. The paternal grandmother also told the social worker she was concerned about mother's mental health because she acted strangely. Finally, the paternal grandmother told the social worker she wished to continue caring for the children.

When interviewed, mother told the social worker the paternal grandmother kicked mother out of the house and she did not have a permanent place to stay. However, mother told the social worker she could stay at the home of the children's maternal grandfather as long as she did not use drugs. Mother admitted she used methamphetamines on a daily basis, but told the social worker she had not used since her arrest. Although mother told the social worker she was not under the influence of drugs during the interview, the social worker reported mother had "pressured speech, flight of ideas, paranoid ideations

, [and] auditory hallucinations." Mother told the social worker she experienced visual hallucinations in the past, and reported experiencing an auditory hallucination earlier that day. While standing on a balcony, smoking a cigarette, mother heard a voice say, "Jump! Just do it." Mother denied she was suicidal.

Although mother told the social worker she would seek drug treatment and would follow through with a mental health assessment, the social worker reported mother lacked insight into how her drug use and behavior affected the children. Mother did not believe her behavior was attributable to her drug use, and instead attributed the change in her behavior to the fact a ruby was stuck in her body. The social worker reported this appeared to be "a paranoid ideation

and tactile hallucination of 'feeling like something is in her body.' " The social worker reported her concern that mother's drug use, hallucinations, and inability to provide for the children placed them at risk of harm, and her erratic behavior was disruptive to the children's school and living situations.

During a "team decision making" meeting, mother experienced sporadic hallucinations, became irate, and walked out of the meeting. When it was decided the father would care for the children and take them to the paternal grandmother's home, mother began shouting obscenities at A.A. and the paternal grandmother. CFS concluded mother's mental health issues and substance abuse placed the children in imminent risk of harm, and concluded the children should not remain in the custody of the parents or the grandparents. An officer with the San Bernardino Police Department served a detention warrant, and the children were detained and placed in the custody of CFS.

In petitions filed with the juvenile court, CFS alleged the children were dependents within the meaning of section 300, subdivision (b)(1), because mother and the father's substance abuse, as well as mother's history of mental health issues, rendered them unable to properly and appropriately care for the children. CFS also alleged the children suffered severe emotional damage as a result of mother's verbal abuse during a psychotic episode, within the meaning of section 300, subdivision (c). CFS recommended the juvenile court order the children be detained and placed in foster care.

Mother appeared for the detention hearing, during which her appointed attorney entered a denial of the allegations and requested the juvenile court appoint a guardian ad litem for mother. The juvenile court appointed a guardian ad litem for mother, made a prima facie finding that the children were dependents within the meaning of section 300, and ordered the children detained and placed in foster care. The court ordered mother to submit to random drug testing, and ordered supervised visitation with the children a minimum of once a week for two hours. CFS was ordered to provide reunification services to mother and the children. At CFS's request, the court ordered unsupervised visitation by the paternal grandmother.

B. Jurisdictional and Dispositional Orders

In the report submitted for the jurisdictional hearing, the social worker stated neither parent had made contact with CFS since the children's removal. The social worker spoke to the paternal grandmother, who said the father's whereabouts were unknown and mother was hospitalized in the psychiatric unit at San Bernardino Community Hospital. The paternal grandmother also reported mother planned on entering a residential treatment program upon release from the hospital.

Although the social worker stated mother's entry into a psychiatric facility was a significant step toward addressing her mental instability, the social worker continued to express concern that mother's mental health issues and her unstable...