San Diego Cnty. Health & Human Servs. Agency v. C.V. (In re N.S.)

• Citation: 55 Cal.App.5th 816,269 Cal.Rptr.3d 732
• Decision Date: 17 September 2020
• Docket Number: D077177
• Parties: IN RE N.S., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. C.V., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

55 Cal.App.5th 816

269 Cal.Rptr.3d 732

IN RE N.S., a Person Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent,

v.C.V., Defendant and Appellant.

D077177

Court of Appeal, Fourth District, Division 1, California.

Filed September 17, 2020

Annie Greenleaf, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, Caitlin E. Ray, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.

AARON, J.

C.V. (Mother) appeals from an order under Welfare and Institutions Code section 366.26¹ selecting adoption as the permanent plan for her son N.S. and terminating her parental rights.² N.S.'s father is a member of the San Pasqual Band of Mission Indians (the Tribe). The Tribe has been involved in this case since the juvenile court found that N.S. is an Indian child and that the Indian Child Welfare Act ( 25 U.S.C. § 1901 et seq. ) (ICWA) applies.³

Mother contends (1) the Tribe's "decree" selecting guardianship as the best permanent plan option for N.S. preempts the statutory preference for adoption under section 366.26 ; (2) N.S.'s counsel breached his duties under section 317 and provided ineffective assistance of counsel by failing to discover what Tribal benefits or membership rights were available to N.S. before the termination of parental rights; (3) the court erred in finding that the Indian child exception of section 366.26, subdivision (c)(1)(B)(vi)(I) and (II) does not apply to preclude termination of parental rights; (4) there is insufficient evidence to support the court's finding beyond a reasonable doubt that continued custody in Mother's care would be a substantial risk to N.S.; and (5) the court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) does not apply to preclude termination of parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2012, when N.S. was 16 months old, the San Diego County Health and Human Services (the Agency) detained him and filed a petition under section 300, subdivision (b), after Mother's roommate found Mother unresponsive, lying in her own vomit with N.S. in his crib in the same room.

Mother had been using prescription drugs and alcohol since January 1, 2012, and admitted that she had a history of using illegal drugs that began in 1993 and a history of alcoholism dating to 2004. She also admitted that she was not stable enough to care for N.S.

The juvenile court assumed jurisdiction over N.S. and removed him from Mother's custody. As noted, the juvenile court found that N.S. was an Indian child and that ICWA applied based on the father's membership in the Tribe. N.S. was placed with the maternal grandparents about three weeks after he was detained. He was returned to Mother's care on a trial visit in May 2013, but was removed again from Mother in September 2013 and placed with the maternal grandparents because Mother admitted to using methamphetamines, amphetamines

, and alcohol since August 2013, and had used synthetic urine to pass a drug test.

In September 2014, the court ordered a permanent plan of legal guardianship, appointed the maternal grandparents as legal guardians, and terminated dependency jurisdiction. The grandparents hoped that Mother would reunify with N.S., but they expressed their willingness to adopt him if Mother were unable to successfully reunify. The maternal grandfather passed away in 2017. N.S. has been with the maternal grandmother (Grandmother) without disruption since he was placed in her home in 2013.

In November 2018, Mother filed a petition under section 388 to change the juvenile court's visitation order. She alleged that Grandmother was not allowing her to have contact and visitation with N.S. "as per the order," and that she had not seen N.S. since December 26, 2016. She asked the court to allow her to have unsupervised and overnight visits with N.S. The court scheduled a hearing on Mother's petition for December 4, 2018, and on that date continued the hearing to January 3, 2019, to allow the Agency social worker time to assess Mother's request and provide a report to the court.

In its report regarding Mother's petition, the Agency recommended that the court maintain its previous orders. The Agency social worker met with Mother on November 29, 2018, at the Family Recovery Center (FRC), where Mother had been in residential substance abuse treatment for a month. Mother told the social worker that her "clean date" was September 22, 2018. She said that she had been struggling to arrange visits with N.S. for the past two years and had tried to contact him through regular mail, e-mail, and by telephone, but Grandmother had blocked the numbers that Mother called from. Mother said that she also tried to send care packages to N.S. with letters providing her contact information, but Grandmother never responded. Mother claimed that she had frequent visits with N.S. when the dependency case was open, but that Grandmother refused to allow visits once the guardianship was established.

After meeting with Mother, the social worker met with Grandmother and N.S. When she was able to speak with Grandmother alone, the social worker asked her why Mother's visitation with N.S. had lapsed. Grandmother said that the last visit had occurred in December 2016 and explained that she had to get a restraining order against Mother in January 2016 because Mother had threatened to physically harm her. She continued to allow regular visits with the mother that year, but throughout 2017, her husband was very ill and was in and out of the hospital. Mother came to the hospital to see Grandmother and N.S. and told them, "Don't worry. I'm just here to protect my inheritance." Grandmother did not think that Mother was in a stable place. Mother had been "in and out of different substance abuse programs 15 or more times."

Grandmother told the social worker that telephone messages from Mother could be pleasant or abusive and that Mother could "also be argumentative and twist words." Mother would call eight to 10 times a day from different and random telephone numbers and although Grandmother gave Mother rules regarding phone calls, she was constantly getting calls from strangers using different phone numbers in the middle of the night. The social worker asked about the packages that Mother reportedly sent to Grandmother's residence. Grandmother said that Mother sent packages in February 2017, March 2018, and April 2018, and that N.S. "correlates" Mother to receiving presents. The social worker reminded Grandmother that Mother still had parental rights and a right to visit N.S. The social worker scheduled a visit at FRC and informed Grandmother that she (the social worker) would be supervising visits, initially.

N.S. was in second grade and was doing well academically and socially at school. He enjoyed reading and playing with his friends and was enrolled in extracurricular activities including soccer, basketball, and a Christian scouting group that Grandmother viewed as a way for him to be around positive male role models. The social worker asked N.S. about his life in Grandmother's home and he said, "Everything here is awesomely best!" When the social worker spoke privately with N.S., she asked him whether he had any worries. He said "no." She asked him how he felt about visiting with his mother and he said okay, but appeared hesitant. However, he said that he would be "okay" with a visit supervised by the social worker the following week at Mother's place.

The social worker supervised four visits between Mother and N.S. in December 2018. N.S. appeared nervous during the first visit. Mother greeted him affectionately and had activities planned for each visit. N.S. was very well behaved initially, but as he became more comfortable with the visits, he began to test limits and boundaries with Mother and needed more redirecting, reminding, and prompting about his behavior. Grandmother told the social worker that Mother had a history of allowing inappropriate behavior to continue rather than stopping it. The social worker's assessment was that Mother and N.S. generally enjoyed the visits but that Mother allowed some misbehavior without consequences.

The social worker's overall assessment was that Mother and Grandmother's relationship was strained and conflicted due to Mother's chronic substance abuse. Grandmother's position was that Mother had never been stable and that it was not beneficial for N.S. to be subjected to Mother's lack of consistency, stability, and sobriety. Mother's only desire was to build a relationship with N.S. Although Mother was in residential treatment and expressed a desire to successfully complete it, based on her past failed attempts to maintain sobriety, the Agency and Grandmother doubted her ability to succeed. Grandmother was aware that she (Grandmother) had violated the court's orders by not following through on visitation. The Agency recommended that the court admonish Grandmother, but noted that N.S. was thriving in her care. The Agency recommended that he remain in her care and that Mother be allowed supervised visitation.

Grandmother filed a section 388 petition on January 3, 2019, requesting that the court reinstate dependency jurisdiction, change its order making guardianship N.S.'s permanent plan, and set a new section 366.26 hearing to determine the most appropriate permanent plan for N.S. Grandmother alleged that the proposed change of order would promote N.S.'s best interests and that Grandmother adopting N.S. would "afford [him] the greatest degree of permanency and stability."

At the hearing on January 3, 2019, the court "re-acquire[d] juvenile dependency jurisdiction[ ]" and appointed counsel to represent both Mother and N.S. Grandmother was represented by retained counsel. Maya Goodblanket, appeared at the hearing as the...