Tulare Cnty. Health & Human Servs. Agency v. West (In re B.A.)
| Decision Date | 07 December 2018 |
| Docket Number | F077502 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re B.A., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT W., Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from orders of the Superior Court of Tulare County. Robin L. Wolfe, Judge.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
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On July 18, 2017, a petition was filed by the Tulare County Health and Human Services Agency (agency) pursuant to Welfare and Institutions Code section 3001 alleging that B.A., then three years old, was at serious risk of physical harm because her mother A.A. (mother) had bound and gagged B.A. by placing socks in her mouth and taping it shut. In addition to the physical abuse she suffered from mother, B.A. was further at risk because her two-year-old cousin had also been abused, hospitalized, unable to breathe on his own, and later died from the physical abuse inflicted by mother, mother's sister, and another adult roommate. There were further allegations against mother for failure to protect, severe physical abuse, cruelty, and inability to care for B.A. due to incarceration.2
B.A.'s father, Herbert W. (father), did not have physical custody of B.A. and had not abused her. Father began the proceedings as an alleged father. He contends the juvenile court erred in failing to find him a presumed father at his first court appearance and that the delay in making this finding and granting father visitation earlier in the proceedings violated his Fourteenth Amendment rights as a parent. Father contends the juvenile court and the agency violated the statutory preference for relative placement by not placing B.A. with her paternal grandmother. He argues the juvenile court abused its discretion in denying his petition under section 388 to modify its earlier orders. He also argues the agency failed to adequately investigate his assertion of Native American heritage in violation of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.). We find no error and affirm the rulings and orders of the juvenile court.
The initial detention hearing was conducted on July 19, 2017.3 Mother testified that she and father were going through a child support proceeding and she was waiting for the results of a DNA test. Mother was not married when B.A. was born. She described her relationship with father as a one-night stand. Mother was also dating A.M., but was not certain who B.A.'s father was. No one was listed as B.A.'s father on her birth certificate and neither father nor A.M. was present at B.A.'s birth. Mother said her own father, B.A.'s grandfather, was the only father figure in B.A.'s life. The juvenile court found father to be an alleged father.
Mother denied Indian heritage, stated that to her knowledge B.A. had no Indian heritage, and the court found there was no evidence that the ICWA applied. Because mother was not recommended to receive reunification services, the right to make educational decisions for B.A. was given to Court Appointed Special Advocate (CASA) Linda Thomas.
In the paternity case, father filed an answer denying he was B.A.'s father. According to the CASA report, B.A. had visitation with her maternal grandparents and maternal great aunt and uncle. These family members were being assessed for placement. The alleged father came forward to request visits with B.A. B.A.'s caretakers expressed their desire to adopt her despite B.A. having some physical health issues as well as problems with communication and problem solving.
On September 6, father appeared at a hearing conducted for an amended petition and was appointed counsel. When asked if B.A. had any Native American ancestry, father replied he believed his mother "was part Native Indian out of Oklahoma." Father did not know which tribe, suggested the court ask his mother, and explained she did not"really brief me about the full heritage thing on her side, but I can find out ...." When asked if any member of father's maternal relatives were registered with a federally recognized tribe, father replied, "No longer."
Father's maternal grandfather was from Arkansas and was registered with a tribe but father did not know the name of the tribe. Father said his grandfather was Freddy Y. and father had possession of his grandfather's Native birth certificate and knew the years of his birth and marriage. When asked if his grandfather was a member of an American Indian tribe, father said he was not really sure but was told this by his parents. Father provided his mother's name and told the court the agency could contact her. Father acknowledged that neither he nor B.A. were members of an American Indian tribe.
Father's counsel explained to the court that father sought to have his status raised from an alleged to a presumed father and he had taken a DNA test through child support services that was not concluded. Counsel stated that father lived with mother and the child and held the child out to be his own. Father testified that he was not married to mother and they had a personal relationship in which they had sex twice leading to B.A.'s birth. Father said he felt responsible for both of them so he provided care to them. Father said they acted like a family unit, though without demands on each other for a social life. Father explained that B.A. was the number one priority.
Father testified his sexual relationship with mother was not exclusive. Father said that mother lived with him after B.A. was born until five months before the hearing, or about two and a half years without interruption. Father explained he did not support mother and B.A. after they left his home because he did not know where mother went. Father took care of B.A. while mother attended college classes. When mother did not finish college, father said he cared for B.A. while mother worked. Father said he experienced B.A.'s first steps, her first words, and he gave B.A. her name. Father admitted he was not at the hospital for B.A.'s birth but explained this was because he did not know if she was his child.
The juvenile court reserved a finding on father's status until the DNA test was completed. The court's tentative ruling was that if the DNA test showed father as B.A.'s biological parent the court would find him a presumed father. Although the court did not believe there was sufficient reason to believe the ICWA applied, it noted the agency was going to investigate further.
The social worker's report noted father had been involved in two prior dependency cases in 2001 and 2003 involving a son and two daughters. His son was eventually placed in a guardianship and father's parental rights to him were terminated. Father received reunification services for his two daughters. One daughter was returned to father on a plan of family maintenance services and the dependency was ended but the other daughter refused to live with father and was placed in a guardianship. Father last saw B.A. about four weeks before her dependency was initiated at which time she looked normal with no injuries. When father contacted social workers after B.A.'s dependency began, he told them mother had moved out of his home in September 2016 and was living with maternal relatives.
The agency filed a second amended petition on October 23. The allegations against mother were the same. The petition added allegations that father was unable to or had failed to protect B.A. from mother's serious physical abuse. The petition further alleged father failed to provide B.A. with adequate food, clothing, shelter, or medical services. The petition included the information concerning father's involvement in two prior dependency actions with three older children and alleged B.A. was at risk of neglect pursuant to subdivision (j) of section 300 because father had failed to address the issues, including substance abuse, that led to the earlier dependency actions.
The social worker's report noted the DNA test results received on October 13 confirmed father is B.A.'s biological parent. Mother reported that father had held B.A. out to be his child to family and friends. The social worker recommended that father be found a presumed father. Father said he tried to help mother as much as he could byencouraging her to attend college but it did not work out. Father stated mother did not use illegal drugs and he felt that overall she was a very good parent. Inconsistent with other statements father had made, he told the social worker that mother and B.A. lived with him until April 2017. He also said the last time he saw B.A. was not a month before her dependency but two months before in mid-May 2017. Father said he had been clean of drugs for some time but did use marijuana for pain management. Father had not had any overnight visits with B.A. since she and mother moved out.
The agency recommended father be denied family reunification services because he had received services in the past, reunification services had been terminated (§ 361.5, subd. (b)(10)) and parental rights to a child had been terminated (§ 361.5, subd. (b)(11)). The agency recommended one two-hour supervised visit between father and B.A. per month.
On the question of Indian ancestry, father said he believed his paternal grandmother M.S. had such ancestry, was unsure of the name of the tribe, but believed...
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