Sonoma Cnty. Human Servs. Agency v. Michelle G. (In re Michael S.)
| Decision Date | 30 March 2021 |
| Docket Number | A158215,A158844,A159775 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re MICHAEL S., et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MICHELLE G. et al., Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. Nos. 5347DEP, 5752DEP, 5753DEP)
These multiple consolidated dependency appeals by two parents and one paternal aunt concern three young siblings each detained at birth due to their parents' chronic drug abuse and who have spent their entire lives in foster care: three-year-old Michael, who tested positive at birth for methamphetamine, and his younger sisters, two-year-old twins, R.A. and R.J., who also were exposed to drugs in utero, and were born three weeks prematurely a day after their mother tested positive for methamphetamine.
In Michael's case, mother received only six months of reunification services and father, twelve. Subsequently, reunification services were bypassed for the twins because of their parents' failure to reunify with Michael. After that, the juvenile court summarily denied father's Welfare and Institutions Code section 3881 petition seeking additional reunification services and related relief on the basis of changed circumstances. Following a five-day evidentiary hearing, it also declined to remove the children from their foster homes and place them with father's sister, appellant Tracie G. (Aunt Tracie), who had been requesting placement of the children since the beginning of their cases and eventually sold her home and moved from across the country to southern California. Then, when a previously undisclosed conflict of interest on the part of the children's lawyer came to light at the conclusion of the contested relative placement hearing, it disqualified the conflicted attorney and appointed new, unconflicted counsel for the children but declined, in addition, to declare a mistrial at the parents' and aunt's request—relief that the children's new lawyer opposed. The juvenile court then terminated parental rights and designated the children's two foster families as prospective adoptive placements.
On appeal, the parents and Aunt Tracie challenge multiple rulings. But for a conceded Indian Child Welfare Act (ICWA) error that requires a limited remand, we affirm the juvenile court's rulings.
Three-year-old Michael's dependency case began on December 12, 2017, two days after he and his mother tested positive for methamphetamine at his birth, when a protective custody warrant issued before his release from the hospital, while he was still suffering from symptoms of withdrawal. Delivered service logs reflect that a social worker from the Sonoma CountyHuman Services Department (agency), William Begley, met with the parents that day at the hospital, and father informed him of a large support system of family members, including his sisters and mother on the east coast.
The agency filed a juvenile dependency petition the following day, December 13, and the next day, December 14, the juvenile court ordered Michael detained. Upon his release from the hospital, Michael was placed into an emergency foster home.
The original petition alleged only mother had a chronic substance abuse problem that placed the child at risk; it was soon amended to allege father did too, which was reflected in his lengthy criminal record of drug-related charges (some violent), and also that he knew about mother's drug use and was unable to protect the baby from her.
In its report prepared for the detention hearing, the agency reported that "[n]o relative has been identified for placement."
Father did not appear at the detention hearing but, unbeknownst to the court, one of father's sisters, Michelle, who lived in Massachusetts, had flown to California and attended the hearing, hoping to take temporary and permanent custody of the child. She spoke up at the hearing, without identifying herself, to clarify a question about father's possible Indian heritage. No objections or issues were raised at the detention hearing concerning the subject of a potential relative placement.2 After the detention hearing, Michelle met with the social worker, was informed she could not take custody of the baby because the case would be in reunification, and provided the social worker with contact information for other paternal relatives, including Aunt Tracie.
It is undisputed, and the juvenile court would much later find, that the agency failed thereafter to give any notice of Michael's case to father's known relatives and their rights to participate in it, notice that is statutorily required within 30 days of a child's removal from parental custody.3 One ofthem was father's sister Aunt Tracie, who lived in Georgia and who, according to delivered service logs, had called and spoken with the social worker about offering assistance to the family the same day the social worker met with the parents in the hospital (December 12, 2017).
Both parents refused to meet with the social worker who prepared the report for the combined jurisdiction/disposition hearing. The report stated that,
The jurisdiction/disposition report contained details of father's life-long struggle with drugs, including chronic methamphetamine abuse since age 13. It also reported on his lengthy criminal record, with voluminous attachments detailing a history of criminal arrests and convictions dating back to his youth. Many were drug-related. Some were disturbingly violent. At the time of its writing, father was on probation for drug-related charges, and an arrest warrant was outstanding on him for violating the terms of his probation.
On January 10, 2018, one month after Michael was born, father was arrested and taken into custody where he would remain for several months. His arrest also marked the beginning of a lengthy period of sobriety for him.
Thereafter, at the combined jurisdiction/disposition hearing, the parents submitted on the allegations of the amended petition, the juvenile court sustained the allegations, declared Michael a dependent of the court, and ordered reunification services pursuant to a negotiated disposition reached during a settlement conference.4 At this point, father was in custody. His counsel reported father was planning to enroll in a nine-month rehabilitation program (Turning Point). Pursuant to the negotiated disposition, the court made a finding on February 1 that, "The Department has made diligent efforts to identify, locate and contact the child's adult relatives within the fifth degree and, for those who are appropriate, has informed them of their options to participate in the care and placement of the child."
On March 3, 2018, Michael was moved from emergency foster care to a foster family that wanted to pursue adoption (commonly referred to as a "concurrent planning home"), where he remained for the duration of the case.
The agency filed three status review reports after the combined jurisdiction/disposition hearing (for a three-month review hearing, the six-month review hearing and again for a 12-month review hearing for father), and none mentioned anything about efforts to assess relatives for placement. The reports did, however, report on concurrent planning. In the six-month report (filed July 5, 2018), the agency reported that Michael "was presented at a Concurrent Planning Meeting on June 26, 2018 and was not accepteddue to prognosis for reunification," but that he "will be reassessed for concurrent planning prior to the twelve-month review hearing." The 12-month report (filed December 26, 2018) reported on his continued placement in a concurrent planning home, since March 3. No objections or issues were raised at the review hearings concerning the subjects of a potential relative placement, the lack of information in the reports about the agency's efforts to investigate relatives, or Michael's continued placement in a concurrent planning home.
On March 29, father was released from jail and, as a condition of probation, entered a nine-month residential drug treatment program, Turning Point, with an expected completion date of December 29.
Meanwhile, efforts were underway to assess Aunt Tracie as a potential placement, having begun when Michael was less than a month old. In late December 2017 or early January 2018, the social worker in charge of assessing relatives for an initial potential placement (Ann Grubaugh) screened Aunt Tracie by phone, and then on January 11, 2018, initiated a request pursuant to the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.) to have her home in Georgia assessed; Grubaugh informed the primary social worker on the case (Mary DiGiacomo) that this was underway.
Grubaugh testified her only concern at that point about placing Michael with Aunt Tracie was that Aunt Tracie lived out of state which would be an obstacle to reunification. In an email to DiGiacomo reporting on the telephone screen, she also noted a concern that Aunt Tracie was "defensive of/possibly unrealistic about the baby's father and reunification." Her email reported that she told Aunt Tracie that, ...
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