San Diego Cnty. Health & Human Servs. Agency v. T.C. (In re A.F.)

• Decision Date: 29 November 2017
• Docket Number: D072226
• Citation: 226 Cal.Rptr.3d 890,18 Cal.App.5th 833
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE A.F., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. T.C., Defendant and Appellant.

18 Cal.App.5th 833

226 Cal.Rptr.3d 890

IN RE A.F., a Person Coming Under the Juvenile Court Law.

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

v.T.C., Defendant and Appellant.

D072226

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

Filed November 29, 2017

Certified for Partial Publication.^*

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and Appellant, T.C.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Kristen M. Ojeil, Senior Deputy County Counsel, for Plaintiff and Respondent.

Neil R. Trop, under appointment by the Court of Appeal, for Minor.

BENKE, Acting P. J.T.C. appeals the juvenile court's dispositional order placing her minor daughter, A.F., in the care of her paternal grandmother, Donna F. T.C. contends the court erred by failing to comply with the placement preferences required under the Indian Child Welfare Act (ICWA) ( 25 U.S.C. § 1901 et seq. ) and asserts that the juvenile court should have continued A.F.'s placement with T.C.'s maternal cousin. We agree with the Agency that the juvenile court's dispositional order complied with the applicable placement preferences and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the events leading to A.F.'s dependency, four-month-old A.F. was living with her father, W.F., in a motor home on Donna's property. W.F.'s girlfriend, Lillie B., and her 18-month-old daughter, Leah B., also were staying in the motor home. At noon on Monday, December 5, 2016, Lillie called 911 when she could not wake Leah. The paramedics arrived and immediately started CPR. The paramedics could not revive Leah and shortly after their arrival pronounced her dead. First responders suspected foul play, and the homicide investigators called to the scene reported Leah had multiple injuries on her body, including a broken arm, bruising on her legs, cuts on her face and head, and a burn on one of her feet. Lillie told San Diego Health and Human ServicesAgency (Agency) social workers at the scene that Leah had been in W.F.'s care since Saturday and that all of the injuries had occurred while Leah was with W.F.

Agency social workers also interviewed W.F. W.F. stated that he had been living in the motor home outside his mother's house with A.F. for a few months. Lillie and W.F. had been dating for several months, and Lillie and Leah occasionally stayed with W.F. in the motor home. W.F. reported that he was A.F.'s primary caretaker and that A.F. was a member of the Campo Band of Mission Indians (Tribe).¹ W.F. told social workers that T.C. used methamphetamine regularly. W.F. denied any involvement in Leah's death, and told the social worker that the child frequently fell and injured herself and was nicknamed "Bumps." He said he and A.F. had fallen asleep in Donna's house the night before and he had checked on Lillie and Leah around 10:00 p.m. W.F. was awoken at 6:00 a.m. by Lillie's angry text messages that he had not slept in the motor home with her. He also said he had checked on Lillie and Leah several times throughout the morning by peaking his head inside the motor home.

Over W.F.'s objections, the Agency's social workers took A.F. into protective custody and placed her at Polinsky Children's Center. T.C. was interviewed by the Agency's social workers later that day and stated that she had left A.F. in W.F.'s care months earlier and had not seen A.F. since October 19, 2016. T.C. confirmed A.F. was an enrolled member of the Tribe. T.C. had a history of involvement with the Agency and had two older children removed from her care as a result of substance abuse. T.C. did have custody of A.F.'s two-year-old half brother. T.C. was resistant to allowing the Agency to inspect her home and also refused to drug test.

On December 8, 2016, the Agency filed a petition under Welfare and Institute Code section 300, subdivision (f)² on behalf of A.F. W.F. was arrested the following day and charged with the first degree murder of Leah. The juvenile court conducted a detention hearing on December 12, 2016, and ordered A.F. detained in out-of-home care, and ordered liberal, supervised visitation for T.C. Counsel for the Agency reported that the Tribe was working on finding a placement for A.F. The following day, W.F. appeared before the juvenile court and the court elevated him to a presumed father, ordered visitation for W.F. and, at W.F.'s request, ordered that Donna be evaluated for placement of A.F. At both the December 12 and 13 hearings, the court found ICWA applied.

For her part, Donna contacted the Agency almost immediately after A.F. was taken into protective custody. She told the Agency's social workers she had been involved in A.F.'s care since her birth and requested A.F. be placed with her. Donna was also concerned about T.C.'s ability to care for A.F. W.F. also told social workers that he wanted A.F. placed with Donna, and did not want his child to live on the reservation with T.C. In advance of the jurisdiction and disposition hearing, the Tribe's expert and social worker recommended that A.F. not be placed with either parent and remain a dependent of the juvenile court. By the time of the first jurisdiction and disposition hearing on January 4, 2017, A.F. was placed with a maternal cousin, Liesha D., on the Tribe's reservation.

In its report for the jurisdiction and disposition hearing, the Agency recommended the court (1) take jurisdiction over A.F., (2) continue A.F.'s placement with Liesha, (3) provide reunification services to T.C., and (4) deny services to W.F. under section 361.5, subdivision (b)(4). At the January 4, 2017 hearing, both parents contested the Agency's recommendations. The court set a settlement conference for January 23, 2017, and a contested hearing for February 9, 2017. W.F.'s counsel also requested that Donna, who attended the hearing, be provided with visitation. W.F.'s counsel asserted that the Agency had unreasonably delayed in approving visitation with Donna and also noted Donna had requested her home be evaluated by the Agency for placement. The court ordered the Agency to provide reasonable supervised visitation for Donna.

On January 20, 2017, the Tribe notified the Agency it was exercising its right to intervene in the proceeding and that it recommended A.F. continue in her placement with Liesha. In its report for the settlement conference, the Agency maintained its earlier recommendations and reported that T.C. was sporadically engaging in services, but still refused to drug test. At the settlement conference, W.F.'s counsel asserted the Agency had provided only one, one-hour supervised visit for Donna and was unreasonably delaying additional visitation. The Agency responded that it had acted reasonably with respect to visitation for Donna and that supervised visitation was appropriate given the seriousness of the circumstances of the case. The court ordered the Agency to provide Donna with a minimum of two supervised visits each month.

At the date set for the contested hearing, the matter was continued. Thereafter, T.C. engaged in services regularly and tested negative for drugs in early February. Donna visited with A.F. on February 24, 2017, and after a team decision meeting on March 8, 2017, the Agency approved overnight weekend visits for Donna. The following day, Donna filed a relative information form notifying the juvenile court that she had retained counsel and would be requesting placement of A.F. In the form, Donna also indicated she was concerned about Liesha's ability to care for A.F. because A.F. had "a severe diaper rash" for "nearly two months." The form attached copies of her communications with the Agency about the rash and photographs showing the severity of the rash and the rash worsening from mid- to late-February.

An additional settlement conference occurred on March 9, 2017, the same day that Donna filed the relative information form. Donna was present at the conference and was represented by counsel. The court acknowledged receipt of Donna's relative information form and questioned the Agency's counsel about A.F.'s diaper rash. The Agency's counsel reported that Liesha had been diligent in having A.F. treated by a doctor and that the rash was healing. Donna's counsel asserted Donna had standing to request placement of A.F. under In re Isabella G. (2016) 246 Cal.App.4th 708, 201 Cal.Rptr.3d 64 ( Isabella G. ), and requested that the court consider the issue of placement with Donna under section 361.3 either at the upcoming disposition hearing or set a special hearing to consider placement. Donna's counsel also requested copies of the court files in the case. Counsel for A.F., T.C. and the Agency objected to the request and asserted Donna did not have standing in the case to contest the Agency's recommended disposition. The court agreed Donna did not have standing, but reiterated a prior order that the Agency had discretion to move A.F. to Donna's home with notice to the minor's counsel. The court also directed the Agency to notify all parties of its final recommendation for relative placement at disposition.

On March 16, 2017, the Agency notified the parties that it was maintaining its recommendation that A.F. remain in Liesha's care. On March 27, 2017, Donna filed a de facto parent request, a request for the court to review the Agency's placement decision, and a request to change a court order under section 388. In a declaration attached to the documents, Donna described her involvement in the case from its inception, her commitment to A.F. since her birth, and her concern that Liesha could not adequately care for the minor. In a separate memorandum of points and authorities, Donna's counsel asserted Donna had standing to address the issue of placement, that placement with Donna was required under section 361.3, and that placement with Donna would comply with ICWA.

The Agency's final report in advance of the contested...