In re J.D. CA2/2 ( 2014 )

Filed 10/9/14 In re J.D. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re J.D., a Person Coming Under the B254280
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK87515)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ELIZABETH S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Anthony
Trendacosta, Juvenile Court Referee. Reversed and remanded with directions.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and
Appellant Elizabeth S.
John F. Krattli, County Counsel, Dawyn Harrison, Assistant County Counsel, and
Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance on behalf of Minor.
******
Elizabeth S. (Mother) appeals from a juvenile court order terminating parental
rights over her daughter, J.D., pursuant to Welfare and Institutions Code1 section 366.26.
Mother claims the juvenile court committed reversible error in failing to apply the
section 366, subdivision (c)(1)(B)(i) exception to termination of parental rights. As an
alternative argument, Mother asserts the order terminating her parental rights must be
reversed because the juvenile court failed to ensure proper compliance with the notice
requirements of the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963) (ICWA).
We conditionally reverse the order terminating parental rights and remand the
matter to ensure compliance with the ICWA. If, after receiving proper notice, no tribe
indicates J.D. is an Indian child within the meaning of the ICWA, then the juvenile court
shall reinstate the order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
The Section 300 Petition and Detention
On April 19, 2011, the Los Angeles County Department of Children and Family
Services (the department) filed a section 300 petition on behalf of 14 month-old, J.D. As
sustained the petition alleged, on prior occasions, Mother and J.D.’s father Joseph D.2
(Father) engaged in altercations in which the Mother bit the Father. On a prior occasion,
Father pushed Mother. The violent altercations on the part of Mother against Father
endangered J.D.’s physical health and safety and placed J.D. at risk of physical harm,
damage and danger. On prior occasions, Father left J.D. with Paternal Grandmother,
C.D. (Paternal Grandmother), without making an appropriate plan for J.D.’s ongoing care
and supervision. The failure to make an appropriate plan for J.D.’s ongoing care and
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 Father, who did not challenge the order terminating his parental rights, is not a
party to this appeal.
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supervision on the part of Father endangers J.D.’s physical health and safety and places
J.D. at risk of physical harm and damage.
On January 22, 2011, the Child Protection Hotline received a referral that J.D. was
the victim of sexual abuse. The referral stated that “the child’s genitalia was red and that
the child was complaining that it hurt.” When Maternal Grandmother, Maria. S., was
interviewed, she indicated that J.D. was visiting Mother earlier in the day. As Maternal
Grandmother prepared to return J.D. to Father, Maternal Grandmother observed redness
and irritation in J.D.’s vaginal area.
When Father was interviewed by an emergency social worker, Father denied that
anyone had touched J.D. Father stated J.D. was given lots of affection, was well cared
for and all her needs were met. J.D. appeared to be neatly dressed and groomed. Father
disrobed J.D. in the presence of the social worker and a police officer. The social worker
did not observe any marks or bruises on J.D. A medical examination of J.D. revealed no
evidence of anal or genital trauma.
Father reported that, although Mother had no physical detects, she has Down’s
Syndrome and cannot care for J.D. on her own. Father provided a family law order,
dated June 25, 2010, granting him full custody of J.D. Father had filed for custody
because he was concerned that Mother was unable to care for J.D. appropriately. The
family law order gave Mother two-hour monitored visits three days per week. The order
provides that Maternal Grandparents were to monitor the visits and Mother was not to be
left alone with J.D. during the visitation periods. In April 2011, while the matter was
pending, the family law order was dismissed at Mother and Father’s request after they
reconciled in March 2011. Father indicated that he wanted the maternal relatives to have
a relationship with J.D.
When Paternal Grandmother was interviewed, she also denied that anyone had
touched J.D. in an inappropriate manner. Paternal Grandmother indicated that she and
Paternal Grandfather cared for J.D. Paternal Grandmother stated she would be attending
J.D.’s January 2011 doctor’s appointment with Father.
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Mother lives with Maternal Grandmother. Mother stated that she did not
“believe” that she could not care for J.D. Mother reported that she had been receiving
parenting services and Options for Independence (Options) classes through the Regional
Center in Downey. Mother stated that her case manager’s name was Jennifer Carter
(Carter). Mother indicated that she and Father were currently separated but there was a
chance they might work on their marriage.
Maternal Grandmother stated she did not have any concerns about J.D. staying
with Father. Maternal Grandmother indicated Mother had some developmental issues.
She said Mother has Down’s Syndrome and functions intellectually at the level of a
13-year-old.
In an interview with Father on January 31, 2011, he reiterated his concern about
Mother’s ability to care for J.D. on her own. Father stated that, when Mother would
become angry, she might disregard J.D. Father indicated that he continued to see Mother
but he did not bring J.D. with him.
Father said he and Mother had been together for two years. Father denied being
violent against Mother. However, he said Mother had been violent towards him on two
different occasions. In the first incident, Mother burned his clothes. As a result, Father
obtained a restraining order against her. The second incident occurred at a park, when
Mother became angry with Father and bit him. Father filed a police report after the
incident. Father said J.D. was not present during the most recent domestic violence
incident.
Paternal Grandmother stated she has concerns about Mother because Mother had
insulted Father calling him the N-word and had made racial slurs against the paternal
family. Paternal Grandmother was concerned because J.D. is biracial. Paternal
Grandmother said she did not know about Mother’s disability until after the parents
married. Paternal Grandmother was concerned about the level of supervision during
Mother’s monitored visits.
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On February 18, 2011, Mother’s case manager, Carter, reported that Mother was
diagnosed with expressive, developmental and receptive language disorder when she was
six years old. While in school, Mother had an Individual Education Plan, which
diagnosed her specific learning disability. Mother was going to have another
psychological evaluation to see if her diagnosis needed to be updated.
Carter indicated that Mother received 90 hours of in-home parenting services each
month. Mother was reported to be doing well and responding positively to teachers, who
came to Mother’s home. Mother sometimes missed the parenting appointments but had
not missed one since December 2010. Carter reported that the Maternal Grandparents are
always there and always monitor visits between Mother and J.D. Carter stated that the
Maternal Grandparents are very responsible and take good care of Mother.
Carter knew about the incident where Mother burned Father’s clothes. Mother
said she burned Father’s clothes because he told her to do it. Carter was also aware of the
biting incident. Mother told Carter it occurred because Father wanted to be intimate and
she did not. Father became angry and told Mother to hit him so she bit him instead.
Carter said sometimes Mother “doesn’t make good decisions.” Carter did not suspect
that Mother abused or neglected J.D.
A previously assigned social worker, Lilia Aguire, who handled a March 2010
referral, indicated that the paternal relatives were very appropriate. They sought the
family law order to protect J.D. when she was in Mother’s custody. Aguire had no safety
concerns for J.D. in Father’s custody and no suspicion of sexual abuse.
On February 23, 2011, because there was no evidence of sexual abuse found
during the investigation, the social worker offered Father alternative response services,
which he accepted. However, on March 22, 2011, the alternative response services case
manager, reported that Father’s whereabouts were unknown. Paternal Grandparents said
Father left on March 4, 2011, without informing them of where he was going. J.D. was
left in the care of the Paternal Grandmother. After searching for Father in hospitals, the
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morgue, and jail, paternal grandfather went to Maternal Grandmother’s home and
discovered Father was residing with Mother.
On March 24, 2011, Maternal Grandmother reported that Mother and Father
moved into their own home. Maternal Grandmother’s sister-in-law was living in the
home with them. Maternal Grandmother reported that Mother and Father intended to
have the family law order amended to allow J.D. to live with them.
When Mother was interviewed at her home on March 24, 2011, she stated that she
and Father were arguing less now that they live together. Mother reported that she bites
Father sometimes when they fight and she bit him in the last month. She reported that
Father pushed her on the bed once while she was pregnant. Mother was still having her
monitored visits three times a week. She thought she was ready to have J.D. with her.
Mother stated that, if she became angry with Father, she would just “‘walk away.’”
The social worker met with Mother, Father and maternal relatives. The Maternal
Grandparents, who have been foster parents since 1996, explained in detail a safety plan
for J.D.’s care. Mother, Father and Maternal Grandparents agreed to the plan, which all
parties signed. On March 26, 2011, during an interview, Father stated his relationship
with Mother was getting better. Father was ready to have J.D. with him. Father was not
comfortable with Mother being alone with J.D. because Mother might not know what to
do if something out of the ordinary happened. Father explained that the family law judge
ordered monitored visits for Mother after observing that Mother was unable to care for
J.D. without a monitor.
During an interview on March 26, 2011, Maternal Grandfather stated he thought
Mother was doing well with her Options services. He felt the parents would be able to
care for J.D. Mother could soothe her, prepare food and changer her diaper. J.D. was
healthy and free of marks and bruises.
In a Team Decision Making meeting on March 31, 2011, Father disclosed that the
family law order was still in place. Joanie Schultz from Options stated Mother “functions
around the age of 13.” It was hard for Schultz to assess Mother’s parenting skills because
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Mother is only with J.D. for a limited time during the week. Maternal Grandparents
wanted Mother and Father to care for J.D. Maternal Grandparents also reported that
Mother had post-partum depression after giving birth but had subsequently improved.
Because of the family law order requiring Mother to have monitored visits, a
safety plan was proposed for Father to care for J.D. Father would have to move to a
separate residence from Mother. Father said he would move back to the Paternal
Grandparents’ home. Mother refused to sign the safety plan that would have allowed
Father to reside with J.D. by himself. Instead, Mother indicated she did not want to move
out of her home and repeatedly stated, “‘I already moved in.’”
Later in the day, Father called and said he was staying in the residence and Mother
was moving in with her parents. On April 1, 2011, the social worker went to Father’s
home; Mother was not residing with Father. However, on April 4, 2011, Father called
the social worker and said he moved back to his parents’ home. Father explained that
Mother had bitten him again after the team decision meeting (TDM).
On April 5, 2011, Paternal Grandparents called the department and reported Father
had left J.D. with them on the previous night and had not returned home. Father did not
say where he was going, did not leave any contact information and did not leave any
documentation which would allow them to sign for medical care. The social worker
could not contact Father because he does not have a telephone.
On April 12, 2011, Maternal Grandfather contacted the social worker and faxed
the family law court’s dismissal order to the social worker. Maternal Grandfather
contacted the social worker for the next two days explaining various plans for caring for
J.D., which included the Mother and Father and Maternal and Paternal Grandparents.
The department detained J.D. from Father due to the on-going domestic violence
between Mother and Father with Mother as the perpetrator. Father was willing to move
J.D. back into a home with him and Mother, which was indicative of his failure to
protect. Father also repeatedly left J.D. for extended periods of time in the care of
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Paternal Grandparents. Father failed to comply with the agreed upon safety plan. On
April 19, 2011, J.D. was released to Paternal Grandmother.
At the April 2011 detention hearing, the juvenile court ordered J.D. detained with
Paternal Grandparents. Father was allowed to remain in the home. Mother was given
monitored visits in a neutral setting, where Father was not to act as the monitor. Father
was given unmonitored visits but was ordered not to take J.D. to Mother. Father was
ordered to inform Paternal Grandparents where he was going when he visited J.D. outside
their home. Mother and Father were given referrals for domestic violence counseling,
individual counseling, and parenting.
Jurisdiction/Disposition
The jurisdiction/disposition report stated J.D. was walking, running and babbling
with Father and paternal relatives. She was using some words including mom, bottle, and
water. Mother said J.D. lived in Maternal Grandparents’ home until she was four months
old, at which point Father gained custody. Father and J.D. began to live with Paternal
Grandparents. According to Mother, Paternal Grandparents were the primary caretakers
of J.D.
Mother did not want to be interviewed privately and insisted that her Options
counselor and Maternal Grandmother be present for the entire interview. Mother
answered all the investigator’s questions. Mother denied burning Father’s clothes but
said Father had told her to do it. Mother said that she had cut up his clothes on one
occasion and put toothpaste in his shoes. Mother stated she was in a psychiatric hospital
for three or four days after that incident. She said she was not prescribed psychotropic
medication because she was breastfeeding. Mother reiterated that Father pushed her onto
a bed while she was pregnant. Mother admitted biting Father but said he told her to do so
because it would make her feel better. Father and Mother had been together since 2008
and married in July 2009. Father lived with Mother but would leave whenever he was
angry.
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Father denied hitting Mother or telling her to burn his clothes or to bite him.
Father stated that, when Mother is angry, she is violent and cries. Mother would often
leave the house and cry in the streets. She would tell Father that he needed to let her bite
him. Mother bit him when she was angry or he did not do something she wanted him to
do. Father said that it rarely happened that Mother would bite him “‘but there are times
where it gets [out] of control.’” Mother bit him at least three or four times. On advice of
his divorce attorney in November 2010, Father filed a police report against Mother after
she bit him on the chest. The matter never went to court.
Father reported that Mother did not want anyone around J.D. Father did not think
Mother was capable of caring for J.D. on her own. Father said Mother was not able to
read J.D. meaning pick up on the child’s needs. Father was also concerned about
Mother’s violent behavior. He stated Mother might snap at anytime and could hurt J.D.
Father admitted that he left J.D. with his parents without telling them where he was going
and when he was returning.
Maternal Grandmother reported that Mother needed a lot of help with her own
daily routine. Given Mother’s limitations, Maternal Grandmother was concerned about
Mother’s ability to care for J.D. on a daily basis. Maternal Grandmother reported that
Mother and Father had a very violent relationship when they lived in an apartment. They
would hit each other. To protect Mother, maternal relatives moved Mother into their
home. However, Mother would go back to live with Father. Father pushed Mother when
she was pregnant. Mother would defend Father and minimize the domestic violence.
Maternal Grandmother thought Father was manipulating Mother and trying to take
advantage of her developmental disability and then use it against Mother.
The Options family services worker, Ellamay Cruz, said Mother and Father had
“‘severe arguments.’” Father once threw hot water on Mother. She would bite Father
every time a situation arose. Disagreements about little things would escalate into huge
arguments. Options provided monitoring services and assisted Mother during monitored
visits with J.D. Mother had only cared for J.D. in supervised situations. Cruz was
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working with Mother on parenting issues like changing diapers and feeding times. She
confirmed that Mother’s interactions with J.D. needed to be monitored. Cruz said Mother
needs continual prompting in caring for J.D. Mother would get sidetracked with texting
or using her phone and would not recognize J.D.’s needs for feeding or changing. Cruz
had to constantly remind Mother that J.D. had needs. Mother also had to be prompted to
interact with J.D. Mother sometimes interacted with J.D. but would get easily distracted
and did not maintain her interactions/bonding with J.D.
On June 27, 2011, Mother and Father pled no contest to the petition. The juvenile
court sustained the petition, as amended pursuant to section 300, subdivision (b). The
court declared J.D. a dependent of the court, removed her from Mother and Father’s
custody, and ordered her suitably placed. The department was ordered to provide family
reunification services. Mother and Father were ordered to complete parenting programs
and to participate in individual counseling to address domestic violence and anger
management issues. Mother was given monitored visits. Father was given unmonitored
visits, but Mother was not to be present at Father’s visits. On August 22, 2011, the
juvenile court signed an order allowing Maternal Grandparents to have weekend
overnight visits with J.D. Mother could have monitored visits in Maternal Grandparents
home but could not stay overnight.
Six-Month Status Review
In the January 2012 status review report, the department stated J.D. was a happy
child. J.D. was doing well in Paternal Grandmother’s home. J.D. visited twice a week
with Mother. Maternal Grandmother monitored Mother’s visits with J.D. Maternal
Grandmother stated Mother spent time reading to J.D. and playing with her. Mother
changed J.D.’s clothes and diapers. Mother would make simple food for J.D. Maternal
Grandmother said J.D. appeared to be happy during the visits and J.D. recognized Mother
as her mother.
Mother completed anger management and parenting classes. A January 17, 2012
letter from Mother’s parenting instructor reported, Mother “could not explain what she
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had learned and stated she would need to read over the lessons again. She also stated that
her husband did the homework for her.” The instructor felt that Mother would benefit
from an in-home or hands-on training.
Neither Mother nor Father had enrolled in individual counseling to address
domestic violence. Mother resided with her parents and Father lived with his parents.
Mother and Father wanted to reunite with each other and J.D.
A September 14, 2011 letter from Options stated Mother and J.D.’s bond was
strengthening and increased visits would help the bond to grow even more. Mother wrote
a letter dated September 15, 2011, which stated she loved J.D. very much and enjoyed
spending time with her.
A January 12, 2012 letter from Option’s assistant director, Schultz, stated Mother
continued to receive services including parenting training. Mother had become more
accustomed to checking J.D. to see if a diaper change was needed without prompting.
Mother interacted with J.D. and engaged her in play activities and reading. Mother also
prepared snacks for J.D. when necessary. Mother had made great strides in improving
her parenting skills but still needed guidance and training. The letter also stated Option’s
staff assisted Mother in completing her homework. Mother stated she and Father worked
on their homework together for their parenting and domestic violence classes.
Paternal Grandmother reported that she thought Maternal Grandparents were
allowing Mother to have overnight visits with J.D. Maternal Grandparents denied that
they were violating the court-ordered condition that Mother not stay overnight during
J.D.’s visits.
Adoption with Paternal Grandparents was identified as the concurrent planning
goal in the event parents failed to reunify with J.D. The department recommended
continued reunification services for the parents.
At the hearing on January 23, 2012, the juvenile court found the parents to be in
partial compliance with the case plan. The department was ordered to continue providing
family reunification services. The court modified Mother’s visitation to unmonitored
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including overnight visits in Maternal Grandmother’s home. Mother’s day visits were
increased to six hours. Mother’s visits were conditioned upon confirmation that she had
enrolled in individual counseling. Parents were ordered not visit together.
Twelve-Month Status Review
In the 12-month status review report dated June 19, 2012, the department stated
J.D. remained placed with Paternal Grandmother. J.D. was healthy, happy and
developmentally on target. Paternal Grandparents wanted to adopt J.D. if the parents
failed to reunify with her.
Mother resided with Maternal Grandparents and continued to participate in
Options. Mother volunteered as a janitor at an animal shelter five days a week. She
continued to participate in court-ordered programs.
Mother enrolled in individual counseling on March 26, 2012. Mother’s therapist,
Dr. Melanie Cain, indicated Mother had just begun to discuss the domestic violence
issues. Dr. Cain stated Mother was more open during the sessions. Mother reported that
she no longer had any fights or arguments with Father. Dr. Cain could not assess child
safety issues because she never observed direct interaction between Mother and J.D.
When questioned by the social worker on March 22, 2012 and April 27, 2012,
about domestic violence, Mother was very defensive. She stated she did not want to
discuss the matter with the social worker. Mother was easily frustrated and upset at
routine questions. Mother would often respond to the questions by saying “‘I don’t
know.’” The department reported that Mother had completed a 12-week parenting
education program and a 26-week anger management class. However, her developmental
delays and lack of fundamental skills hindered Mother’s ability to apply in daily social
situations what she had learned in her parenting and anger management classes. Mother
did not appear to have the ability to retain information from her programs. Mother felt
that, because she had almost completed court-ordered programs, she should be able to
gain custody of J.D. Mother wanted to reunify with Father and J.D.
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Father moved out of Paternal Grandparents’ home because he did not want to
abide by their rules. Father was homeless and lived in shelters. Paternal Grandparents
said Father would often ask for money to register for individual counseling and
transportation needs. They would subsequently discover Father had spent the money
paying for motel rooms so that he and Mother could be together. Father spent most of his
time outside the home instead of spending time with J.D. Father indicated he wanted to
reunify with J.D. and Mother. On April 27, 2012, Father reiterated that he thought
Mother could not care for J.D. without help because of Mother’s developmental issues.
If he could not reunify with J.D., he wanted Paternal Grandparents to care for J.D.
Paternal Grandmother suspected that Father was not homeless but was residing
with the Maternal Grandparents. She thought that Father and Mother were visiting J.D.
together in Maternal Grandmother’s home because Father spent most of his time there.
Paternal Grandmother was concerned about J.D.’s safety during the visits. Maternal
Grandparents, Mother and Father all denied that Mother and Father visited J.D. together.
Maternal Grandparents were planning to buy Mother and Father a trailer. Maternal
Grandfather assisted Father in obtaining employment and wanted to continue supporting
parents so they could reunify with J.D.
On June 19, 2012, the juvenile court ordered unmonitored visits for Father and
Mother. Mother’s visits were to occur in Maternal Grandmother’s home. The court
continued the matter for a contested hearing. The court ordered the department to
prepare a supplemental report “to address parents’ progress in programs, updated
information, and any change in recommendation.”
In the August 2012 supplemental report, the department stated Father was
interviewed on July 18, 2012. Father reported that Mother is still violent toward him.
Mother would easily get upset whenever she cannot have her way. Mother often hit him
or punched him with her fists. Father said he did not trust Mother to care for J.D. Father
did not report the continued violence earlier because Father worked for Maternal
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Grandfather and Father was afraid of losing his job. Father wanted to save his money
and get his own place to live.
Father said he was living with a friend. Father refused to give his address to the
social worker. Father said he had just enrolled in individual counseling but could not
remember the name of the counselor or counseling agency and did not provide any
contact information. Father stated he was not sure when he would be able to obtain
suitable housing for himself and J.D. With Mother’s on-going domestic violence toward
him, he would not be able to reunify with J.D. in the future. On July 18, 2012, Paternal
Grandmother reported Father did not show up for visits and had not asked for any visits
since June 19, 2012.
Mother denied being abusive towards Father. Mother stated she planned to stay
with Father. Maternal Grandparents would assist them to get stable housing in the near
future. Mother visited J.D. every Tuesday and Thursday for about five to seven hours per
visit. The visits were monitored by Mother’s Regional Center workers when they
occurred outside the Maternal Grandmother’s home. The visits were good and
appropriate. They watched children’s movies or played in the backyard. Mother
continued with individual counseling.
The department noted that the domestic violence issues remained unresolved
between the parents, who wanted to continue their relationship with each other. Father
was financially dependent on the maternal relatives. It did not appear that Mother
learned any valuable lessons from her parenting or anger management classes. The
department recommended that the court terminate family reunification services and that a
selection and implementation hearing be set.
In a Last Minute Information for the Court dated September 24, 2012, the
department reported parents’ visitation schedule. Mother had six-hour unmonitored
visits, two times a week. Mother shared meals or watched children’s movies with J.D.
during the visits. J.D. returned from the visits clean and well.
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At the contested hearing on September 24, 2012, the juvenile court found Mother
in compliance with the case plan and Father in partial compliance with the case plan.
The department was ordered to continue family reunification services. The court ordered
the department to convene a TDM to include Mother, Father, Maternal and Paternal
Grandparents, service providers, therapists, and Regional Center providers. The meeting
was to address a safety plan for the parents and J.D. and recommendation as to whether
the monitored or unmonitored visits should occur for both parents with Mother being
observed during the visit. Mother and Father were to be referred for conjoint counseling.
Eighteen-Month Status Review
In the November 2012 eighteen-month status review report, the department
indicated that J.D. remained placed with Paternal Grandmother. J.D. was doing well in
her placement. She was age appropriate and presented no concerns. J.D.’s caretakers
reported that she is happy and healthy.
Mother continued receiving services from Options and working as a volunteer. A
TDM was held on October 26, 2012. Mother’s therapist, Dr. Cain, provided a letter dated
October 22, 2012, showing Mother’s progress. Dr. Cain stated that Mother had attended
30 individual sessions. The sessions focused on assisting Mother with increasing
independence and assertive communication. The sessions also explored decreasing
conflict with her spouse, identifying her level of anger, and alternative responses to anger
such as communication, walking away and taking a break from the distressing situation.
Dr. Cain stated that Mother “continues to report increased comfort with independently
tending to her daughter’s need and enjoys learning new ways to be a parent.” In a prior
letter dated, September 17, 2012, Dr. Cain wrote that Mother reported that her “motherly
bond with her daughter has increased and she is committed to doing whatever is
necessary for her child.”
On October 25, 2012, the social worker spoke to Dr. Cain, who stated she could
not make any judgment about Mother’s behaviors or ability to parent a child. Dr. Cain
added that she did not want to discriminate against Mother for being developmentally
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delayed. Dr. Cain opined that Mother could care for J.D. with support and supervision
from Maternal Grandparents and Options.
On October 26, 2012, Mother reported that she and Father had two physical
altercations, one in September 2012 at Knott’s Berry Farm and one in October 2012, at
Father’s place of employment. Mother bit Father’s chest during the Knott’s Berry Farm
incident after he refused to let her leave. J.D. was not present at the time. Mother said
she also bit Father’s arm while he was working at the church because he refused to give
her X-Box game to her. J.D. was being supervised by Maternal Grandparents in the same
building at the time Mother bit Father’s arm.
Father confirmed the two biting incidents, which occurred within two months of
the status review report. Father said that Mother bit his arm out of frustration and anger
when he would not give her the X-Box. There was open skin and bleeding. Father
showed the TDM participants a healed scar where Mother had bitten him. Father
enrolled in individual counseling and attended three of seven scheduled sessions.
Mother had unmonitored six-hour visits twice a week in Maternal Grandparents’
home. During those visits, Mother and J.D. ate and watched movies. If Mother and J.D.
visit outside the home, the visits are monitored by Mother’s Options’ counselor, Cruz.
According to Cruz, when Mother started visiting J.D. in 2011, Mother needed prompting
to care for and interact with J.D. In the past three or four months, Mother did not need as
much prompting to attend to J.D.’s needs. In addition, J.D. had started asking more of
Mother rather than running to Maternal Grandmother.
Mother reported that she wanted to reunify with J.D. and Father. Mother thought
she could support J.D. with SSI if Maternal Grandparents provided them with a home.
Mother wanted to continue her relationship with Father in spite of the two recent physical
altercations.
Father reported that he did not believe Mother alone could care for J.D. or have
unmonitored visits with her. Father felt J.D.’s safety could be compromised because
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Mother tended to get angry when she did not get her way. He too wanted to continue his
relationship with Mother even though they had engaged in two recent violent altercations.
Maternal Grandfather stated that Mother’s anger and physical violence toward
Father were the result of manipulation and provocation by Father. Maternal Grandfather
did not believe Mother was violent and had learned to control her emotions through
individual counseling. He thought Mother should be reunified with J.D. and that Mother
was capable of having unmonitored visits.
Paternal Grandparents wanted to adopt J.D. if parents failed to reunify with her.
The department recommended the court terminate parental rights and set the matter for a
section 366.26 hearing to select and implement a permanent plan for J.D. The juvenile
court continued the matter for a contested hearing.
In a December 2012 supplemental report, the department stated the social worker
met with Mother on November 28, 2012. The meeting was at Maternal Grandparents’
home and included Mother’s Options’ counselor and Maternal Grandfather. When the
social worker questioned Mother about future plans with Father, Mother shrugged her
shoulders replied she did not know. Mother also did not want to continue conjoint
counseling stating it was not court-ordered. Mother stated she wanted to focus on
reuniting with J.D. although Mother was unable to say how she would take care of J.D.
Mother spoke with Father on the telephone several times a week. However, she did not
see him in person. Mother was constantly looking at Cruz and Maternal Grandmother
during the meeting.
Cruz said J.D. appeared to enjoy visiting Mother. They visited about four hours
twice a week. Mother made a good effort to keep J.D. engaged in playing and in
interacting with Mother by reading or playing.
Paternal Grandfather reported that J.D. was doing well in her placement. She
enjoyed preschool. J.D. had behavioral issues after her visits with Mother and Maternal
Grandparents such as sucking her thumb. Paternal Grandfather attributed the behavior to
17
missing Mother and Maternal Grandparents right after the visit. Father was visiting more
regularly and spending time playing and reading with J.D.
In a January 18, 2013, Last Minute Information for the Court, the department
reported that a TDM was held on January 9, 2013. Mother and Maternal Grandparents
refused to attend the meeting. At the meeting, Paternal Grandparents refused to allow
Father to live in their home. They did not trust Father to protect J.D. from Mother. They
did not believe that J.D. was Father’s number one priority. They said Father continued to
have a relationship with Mother, who had a history of domestic violence against him.
Father confirmed that he chose to be with Mother in spite of her violent behavior.
Father said he did not trust Mother to be alone with J.D. because of Mother’s
unpredictable angry outbursts and behavior.
On January 18, 2013, the court terminated reunification services and set the matter
for a section 366.26 hearing.
The Sections 366.26 and 388 Hearing
In the May 2013 section 366.26 report, the department stated J.D. had remained
placed with her prospective adoptive family, Paternal Grandparents, since April 2011.
J.D. has been provided with adequate care and supervision. She was strongly bonded
with Paternal Grandparents, who wanted to provide her with a stable and permanent
home. They love J.D. and want to keep her safe. They were committed to J.D. The
department recommended that parental rights be terminated with a plan of adoption.
Mother filed a section 388 petition on July 8, 2013. Mother requested the juvenile
court to return custody of J.D. to her and to reinstate family reunification services with
unmonitored visits. Attached to the petition was a letter from Dr. Cain dated May 13,
2013. The letter stated Mother had attended 54 individual therapy sessions. Mother
continued to make J.D. a priority and enjoyed the opportunity to spend time with her
during visits. A May 14, 2013 letter from Mother’s social vocational manager described
Mother’s participation as a volunteer at the animal shelter. The juvenile court granted a
hearing on the section 388 petition.
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The July 2013 status review report for the permanent plan hearing stated J.D.
visited with Mother twice a week. Father had not visited J.D. since January 18, 2013.
J.D. was doing well in the home of Paternal Grandparents, who remained committed to
providing a stable, loving and nurturing home environment for her. J.D. appears to be
quite comfortable and happy in her prospective adoptive home. She is always clean, well
dressed and is healthy and happy. Maternal Grandparents take J.D. to medical
appointments and have enrolled her in preschool.
The department reported that Mother has intellectual, social and emotional
disabilities for which she receives Regional Center services. Mother needed to continue
participating in her Regional Center programs to assist her in improving her living and
social skills. Mother continued in individual counseling to deal with the case issue of
domestic violence. Mother chose to continue a relationship with Father even though they
continued to have domestic violence incidents. Mother planned to reside with Father in
the near future. Mother is very dependent on Father for emotional support and also relies
on Maternal Grandparents for emotional and financial support.
Father had only partially complied with court orders. Father did not enroll in
individual counseling until September 14, 2012, and then missed three out of seven
sessions. Father has not addressed his domestic violence problems. Father chooses to
remain in a relationship with Mother despite their on-going domestic violence incidents.
Father has no stable housing and depends on Maternal Grandparents for financial
support.
Attached to the July 2013 status report was a letter from Dr. Cain which indicated
Mother had completed 60 individual therapy sessions. Mother continued to attempt to
independently care for J.D.; however, Maternal Grandmother’s protective nature did not
always allow this to happen. Mother enjoyed visits with J.D. “and is making more efforts
to independently provide care for her daughter.”
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The department continued to recommend termination of parental rights. In a Last
Minute Information for the Court dated July 19, 2013, the department advised the
juvenile court that the Paternal Grandparents’ adoptive homestudy had been approved.
On July 19, 2013, the juvenile court held combined section 388 petition and
section 366.26 hearings. Mother testified that J.D. called her “Mommy.” Mother visited
J.D. on Tuesdays and Thursdays and on every other weekend J.D. sleeps over at Mother’s
home. The two went to the park, playground, mall and library. An Options worker went
with Mother and J.D. to the park. Mother and J.D. did “little projects” with paper and
glue. Mother prepared eggs and rice for J.D. to eat. Mother would assist J.D. in
changing clothes. However, Mother would be present when Maternal Grandmother
bathed and cleaned J.D. Mother resided with Maternal Grandparents.
Mother also testified that Father was not present during her visits with J.D. Father
had dropped off boxes in front of maternal grandparents’ home while J.D. was in the
living room. Mother went out on dates with Father and had gone on one with him the
day before she testified.
In argument, the department asserted the juvenile court should deny Mother’s
section 388 petition, terminate parental rights, and “free” J.D. for adoption. J.D.’s
attorney joined the department’s requests. Mother requested the court grant the
section 388 petition and not terminate parental rights. The court denied the section 388
petition finding there were no changed circumstances and it was not in J.D.’s best
interests.
The juvenile court found Mother failed to meet her burden of establishing an
exception under section 366.26, subdivision(c)(1)(B)(i). The court noted that Mother had
not had physical custody of J.D. even before April 2011 when the dependency
proceeding began because of the family law order. Mother’s visits were “almost always
with someone else present.” The court indicated it appreciated the fact Mother had gone
to all her individual therapy sessions. However, the court stated: “But after 60 individual
therapy sessions the best that her therapist can say is that she’s making more efforts to
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independently provide care for her daughter.” The court further noted that Mother and
Father continued their relationship without addressing the case issue of domestic
violence. The court pointed out that, while Mother did some things a parent would do,
Paternal Grandparents acted as J.D.’s parents. The court also noted that, during Mother’s
visits, Maternal Grandmother assumed most of the parental responsibility. The court
found J.D. adoptable, terminated parental rights and ordered a plan of adoption. The
record does not show that Mother was served with the order terminating her parental
rights.
On January 17, 2014, the department filed a status review report for a post
permanent plan review hearing. After the January 17, 2014 hearing, Mother filed a
notice of appeal. Mother checked a box under section 360 (declaration of dependency).
Mother stated she wanted “to get my daughter back I am doing everything in my interest
to comply.” Mother also described her appeal as one “to get my daughter to return
home.”
ICWA FACTS
The detention report stated that ICWA might apply because Paternal Grandmother
stated that she has Cherokee ancestry from her mother. Mother denied America Indian
ancestry. Father completed an ICWA form on April 19, 2011, indicating that one or
more of his ancestors is or was a member of a federally recognized tribe. Father was not
aware of which tribe but wrote it was his great grandmother “Mattie [B.] 1911.” At the
April 2011 detention hearing, the juvenile court ordered the department to follow-up on
possible American Indian heritage through paternal great-great-grandmother, Mattie B.
The May 2011 jurisdiction/disposition report indicated that Paternal Grandmother
stated that one of her grandparents was believed to be Cherokee but she was not sure of
the tribe or state. Paternal Grandmother did not believe that any family members were
registered with a tribe or would meet qualifications for registration. However, she
provided the department with her family information. The department reported it sent
notices by registered mail to the Bureau of Indian Affairs, the Department of the Interior,
21
Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of
Cherokee Indians. The department attached to the jurisdiction report return receipts from
the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and
the Bureau of Indian Affairs. The department also attached a letter from the United
Keetoowah Band of Cherokee Indians indicating J.D. was not eligible for membership.
The June 2012 status review report stated that a letter dated June 2, 2011 from the
Cherokee Nation indicated that J.D. was not an Indian child in relation to the tribe. The
letter stated that the determination was based on the information provided and that any
incorrect or omitted information might invalidate the determination. The department
attached a list of ICWA notices sent by registered mail and return receipts. The notices
did not mention the ancestor Mattie B.
On November 5, 2012, the juvenile court found that ICWA did not apply.
DISCUSSION
I. Jurisdiction to Determine Appeal
As a preliminary matter, the department asserts we lack jurisdiction to consider
Mother’s appeal because the notice of appeal did not check the section 366.26 box on the
Judicial Council form. ‘“[I]t is, and has been, the law of this state that notices of appeal
are to be liberally construed so as to protect the right of appeal if it is reasonably clear
what [the] appellant was trying to appeal from, and where the respondent could not
possibly have been misled or prejudiced.’ [Citations.] A notice of appeal ‘is sufficient if
it identifies the particular judgment or order being appealed.’ [Citation.]” (In re Joshua
S. (2007) 41 Cal. 4th 261, 272.) An appellate court will liberally construe an appeal
where: the order is appealable; the notice of appeal is timely; and there is no prejudice to
the respondent. (In re Madison W. (2006) 141 Cal. App. 4th 1447, 1449-1450.)
In this case, we liberally construe Mother’s notice of appeal to be from the order
terminating her parental rights. First, an order terminating parental rights is appealable.
(§ 395.) Second, the department does not dispute Mother’s assertion that the notice of
appeal is timely because the order terminating her parental rights was rendered by
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Commissioner Anthony Trendacosta, appointed to sit as a juvenile court referee. (Super.
Ct. L.A. County, Local Rules, rule 7.33.) And, the record does not reflect that the
commissioner provided Mother with notice as required by section 248 and California
Rules of Court, rule 5.538(b). (See also § 250.) Thus, the appeal is timely given the
failure to serve Mother with the order terminating her parental rights. Third, it is also
reasonably clear that Mother was contesting the juvenile court’s order refusing to return
J.D. to her and the department has not argued prejudice.
Moreover, because there is no record that Mother was ever served with notice that
her parental rights were terminated pursuant to section 366.26, Mother’s pro. per. notice
of appeal is entitled to a liberal construction under the circumstances of this case. (In re
Joshua S., supra, 41 Cal.4th at p. 272; In re Madison W., supra, 141 Cal.App.4th at
pp. 1450-1451.) Mother, who has Down’s Syndrome, functions at the age of a 13-year-
old. Although Mother checked a box under section 360 (declaration of dependency),
Mother specifically stated she wanted “to get my daughter back I am doing everything in
my interest to comply.” Mother also described her appeal as one “to get my daughter to
return home.” Under the circumstances, the department is incorrect in asserting that the
notice of appeal was insufficient to establish jurisdiction to review the order terminating
parental rights.
II. Termination of Parental Rights
Mother does not claim J.D. was not adoptable. Rather, Mother claims the juvenile
court committed reversible error in failing to apply the exception to termination of
parental rights contained in section 366.26, subdivision(c)(1)(B)(i). There is some
discrepancy between appellate courts as to what standard of review applies—sufficiency
of the evidence or abuse of discretion. (Cf. In re S.B. (2008) 164 Cal. App. 4th 289, 297-
298 and In re Autumn H. (1994) 27 Cal. App. 4th 567, 575 [the determination of whether
an exceptional circumstance exists is customarily challenged for sufficiency of evidence]
with In re Jasmine D. (2000) 78 Cal. App. 4th 1339, 1342 [abuse of discretion applied to
determination of whether parent-child exception existed] and In re T.S. (2009) 175
23
Cal. App. 4th 1031, 1038 [Indian child exception].) Some courts apply a hybrid of the two
standards. (In re C.B. (2010) 190 Cal. App. 4th 102, 122-123; In re Bailey J. (2010) 189
Cal. App. 4th 1308, 1314-1315.) Under this standard, the juvenile court has discretion to
resolve whether a statutory exception exists such that termination of parental rights would
be detrimental to an adoptable child. (In re A.A. (2008) 167 Cal. App. 4th 1292, 1322;
In re Jasmine D., supra, at p. 1342.) However, the juvenile court’s pure factual findings
are reviewed for substantial evidence. (In re C.B., supra, at p. 122; In re Jasmine D.,
supra, at p. 1351.) Under either standard, there was no reversible error in this case.
If a child is likely to be adopted, the preferred permanent plan, at a section 366.26
hearing, is adoption. (In re Celine R. (2003) 31 Cal. 4th 45, 53; In re Jasmine D., supra,
78 Cal.App.4th at p. 1348.) The parent has the burden of raising any relevant exception
in the juvenile court. (In re C.F. (2011) 193 Cal. App. 4th 549, 553; In re Erik P. (2002)
104 Cal. App. 4th 395, 402-403.) Mother has the burden of producing evidence showing
the exception applies. (In re Celine R., supra, at p. 61; In re Bailey J., supra, 189
Cal.App.4th at p. 1314.)
Mother claims she established the exception by showing regular and consistent
visitation and that she and J.D. are bonded. To determine whether the exception applies,
the juvenile court should consider: the age of the child; the portion of the child’s life
spent in the parent’s custody; the positive and negative interaction between the parent and
the child; and the child’s particular needs. (In re Amber M. (2002) 103 Cal. App. 4th 681,
689; In re Jerome D. (2000) 84 Cal. App. 4th 1200, 1206; In re Autumn H., supra, 27
Cal.App.4th at p. 576.)
“In the context of the dependency scheme prescribed by the Legislature, . . . the
‘benefit from continuing the [parent/child] relationship’ exception [means] the
relationship promotes the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new, adoptive parents. In
other words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
24
family would confer. If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights are not
terminated. [¶] Interaction between natural parent and child will always confer some
incidental benefit to the child. The significant attachment from child to parent results
from the adult’s attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation.] The exception applies only where the
court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at
p. 575.)
Mother did not show she had a parental role as opposed to a mere friendship with
J.D. (In re Brittany C. (1999) 76 Cal. App. 4th 847, 854; [parents must show at least one
biological parent occupies a parental role rather than a friendship].) Instead, Mother only
showed frequent contact with pleasant visits, which did not establish a parental role. (See
In re Andrea R. (1999) 75 Cal. App. 4th 1093, 1108, 1109 [parents are required to
establish more than “‘frequent and loving contact’” or an “emotional bond” accompanied
by pleasant visits but must show “‘parental role’”].) Mother did not produce any
evidence that she provided daily nurturing to J.D., which was indicative of a strong
parent-child bond after April 2011 when the dependency proceeding began. (In re Jamie
R. (2001) 90 Cal. App. 4th 766, 774.) Furthermore, as the court pointed out, J.D. was not
in Mother’s custody at that time due to the family law order giving Father custody of
J.D., when she was four months old.
J.D. was over three and half years old when parental rights were terminated. The
dependency action was filed in April 2011 when J.D. was 14 months old. We
acknowledge that Mother continued to participate in court-ordered programs during the
two-year period after the dependency petition filed. However, Mother and Father had not
resolved any of the issues which brought the family to the court’s attention. Mother and
25
Father continued the on again off again domestic violence filled relationship throughout
the proceedings.
Although J.D. had happy visits with Mother, Mother had not provided for J.D.’s
daily needs or care since J.D. was four months old. J.D. had been living with Paternal
Grandparents since Father had moved in with his parents after he and Mother separated.
Thus, for the bulk of J.D.’s life, she had lived with Paternal Grandparents, who were her
prospective adoptive family. For most of her life, J.D.’s daily needs and care were met
by Paternal Grandparents, who wanted to adopt her. Under the circumstances, the
juvenile court did not err in terminating parental rights given the absence of evidence
showing “the existence of such a strong and beneficial parent-child relationship” which
“outweighs the child’s need for a stable and permanent home.” (In re Casey D., supra,
70 Cal.App.4th at p. 51.)
III. ICWA Compliance
Mother asserts the order must be reversed on the ground ICWA notice
requirements were not met because the department failed to include sufficient
information about paternal relative Mattie B. “[W]here the court knows or has reason to
know that an Indian child is involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify the parent or Indian
custodian and Indian child’s tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.” (25 U.S.C. § 1912(a).)
The department concedes that there were irregularities in complying with the
notice requirements in that Mattie B. was confirmed by Paternal Grandmother to have a
Cherokee heritage. However, the notices sent to the Cherokee tribes did not contain
ancestor Mattie B.’s name. In addition, there was no signed return receipt from the
Eastern Band of Cherokee Indians in the record. The department concedes that the return
receipts and responses were not provided to the court and asks that the termination order
be reversed and remanded for the sole purpose of complying with the notice
requirements.
26
We agree that the termination order must be reversed for the limited purpose of
determining compliance with the notice requirements. (See In re Brooke C. (2005) 127
Cal. App. 4th 377, 385; In re Miguel E. (2004) 120 Cal. App. 4th 521, 549-550; In re Karla
C. (2003) 113 Cal. App. 4th 166, 174-176.) However, if no tribe responds that J.D. is an
Indian child, the juvenile court is directed to reinstate the order terminating parental
rights.
DISPOSITION
The order terminating parental rights is conditionally reversed and the case is
remanded to the juvenile court with directions to order the department to comply with
inquiry and notice provisions of ICWA. If, after receiving proper notice, no tribe
indicates J.D. is an Indian child within the meaning of the ICWA, then the juvenile court
shall reinstate the order terminating parental rights.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
27