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In Re D.S., A Person Coming Under the Juvenile Court Law. v. C.S

December 15, 2010


Super.Ct.No. RIJ116690 APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge.

The opinion of the court was delivered by: Hollenhorstj.

In re D.S.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded with directions.



C.S. (father) appeals from orders denying his petition under Welfare and Institutions Code*fn1 section 388 and terminating his parental rights to his son, D.S. (the child). Father contends (1) the juvenile court abused its discretion by denying his section 388 petition when it was in the child's best interest to return to father or for father to be provided further reunification services; (2) substantial evidence supported application of the beneficial relationship exception to adoption under section 366.26, subd. (c)(1)(B)(i); and (3) the Riverside County Department of Public Social Services (Department) failed to comply with notice and inquiry requirements of the Indian Child Welfare Act (ICWA). We agree that requirements of the ICWA were not satisfied, and we therefore conditionally reverse and remand for further proceedings in compliance with the ICWA.


In May 2008, father was arrested for driving under the influence of alcohol in Fresno County. The child, who had been with father in the car, was taken into custody. The child, then six years old, had lived with father his entire life; the child's mother*fn2 had left the family three years earlier, and her whereabouts remain unknown.

Following father's arrest, the Department of Children and Family Services in Fresno County (DCFS) filed a petition under section 300, subdivision (b) alleging father had a history of substance abuse that negatively affected his ability to care for the child. The detention report stated that father and the child lived in Moreno Valley. The child had attended school for only about a month; father had taken him out of school because of behavioral issues. Father did not know the name of the school. The child told the social worker that father disciplined him by hitting him in the face; the last time that had happened was "[y]esterday." Father had slapped the child and knocked him to the ground because the child did not want to eat his cereal. The paternal grandmother stated that father had been drinking alcohol for 20 years, and father had been in trouble in the past from his drinking. He had had a DUI conviction in 1982 and had not had a valid driver's license since 1983.

At the detention hearing in Fresno County, the juvenile court found that a prima facie case had been established as to the child and detained the child in foster care.

The Fresno County DCFS filed a jurisdiction report in June 2008 recommending removal of the matter to Riverside County, where father had resided before the detention. Father had tested negative in a random drug and alcohol test. At the jurisdictional hearing in Fresno County, father pleaded no contest to the section 300, subdivision (b) allegation, and the matter was transferred to Riverside County.

The Department filed a disposition report in August 2008. That report stated that father had attended a parenting class, substance abuse counseling, and group meetings and had made positive improvements. His drug tests were negative. The child was described as developing appropriately and well adjusted, but he also displayed some signs of aggressive and defiant behavior, and the Fresno County DCFS had recommended individual treatment for him following a mental health assessment.

At the disposition hearing in October 2008, the juvenile court ordered reunification services and unsupervised day visits. The court authorized home placement upon a suitable home evaluation, a clear Life scan, and appropriate day care. The court found that the ICWA did not apply.

In a status review report filed in January 2009, the social worker noted that father was having unsupervised visitation with the child on Saturdays for eight hours, and the child was happy and appropriate after the visits. Father had completed a parenting course and was enrolled in a computer drafting course. His random drug tests had all been negative. The social worker reported no developmental or physical concerns for the child, who functioned at an age-appropriate level. The child was enrolled in school and was having a difficult time academically, and testing had been conducted. He was having therapy and was progressing well.

At the six-month review hearing in January 2009, the juvenile court ordered the child returned to father's custody with family maintenance services. All parties agreed the child was attached to and well bonded with father, and that father was capable of meeting the child's needs and had complied with his case plan.

In the July 2009 status review report, the Department recommended that minor remain with father and that the court terminate dependency jurisdiction at the next hearing because the child was happy to be with father, and the issues which had led to the initiation of dependency proceedings "[were] no longer present."

However, a few days later, the Department filed a supplemental petition under section 387, alleging that father had been arrested for domestic violence after an altercation with his girlfriend in the child's presence. The detention report stated that father had called the police, telling them he wanted the girlfriend removed from his home. The girlfriend had marks all over her body, including redness around her throat and arms. She stated father had put a knife to her throat and had threatened to kill her. He had choked her almost to the point of passing out and had dragged her around the house by her leg. The responding officer noted a strong odor of alcohol coming from father's person, and father later told the social worker he had been intoxicated.*fn3

The child witnessed the incident. The child nonetheless told the social worker he loved father, felt safe with him, and was happy in his care. The child cried uncontrollably and refused to get out of the car upon arriving at the foster home. The juvenile court ordered the child detained.

The Department filed a jurisdiction/disposition report on the section 387 petition recommending denial of reunification services to father under section 361.5, subdivisions (b)(10), (11), and (13). The report noted that father had an extensive history with Child Protective Services in Ohio.*fn4 Prior allegations in Ohio included lack of supervision, lack of adequate resources, inadequate parenting skills, lack of follow-through with services, severe physical abuse, and domestic violence. In Ohio, the parents' other six children had been detained from the parents after the parents duct taped one of their children's hands around a pole in the basement, duct taped his mouth, and repeatedly struck him on the upper thigh, resulting in an open wound and about eight linear marks that appeared to have been made by an extension ...

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