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In Re E.S. et al., Persons Coming Under the Juvenile Court v. B.A

September 12, 2011

IN RE E.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
B.A., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. JD229724, JD229725)

The opinion of the court was delivered by: Murray , J.

In re E.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Presumed father B.A. (father) appeals the denial of his petition to modify and the termination of his parental rights as to his presumptive daughter, E.A. (minor) and her younger half sibling, E.S. (sister; collectively children). He contends (1) the juvenile court abused its discretion by denying his petition to modify the termination of his reunification services, (2) the juvenile court erred in terminating his parental rights because the parental bond exception applied and there was no finding he was an unfit parent, and (3) the Department of Health and Human Services (the Department) did not comply with the notice provisions of the Indian Child Welfare Act (ICWA).

We hold that father does not have standing to raise the issues regarding sister. Accordingly, we dismiss the appeal as to her.

As to minor, county counsel takes no position on father's contention that the trial court erred in denying his petition to modify. We find that county counsel has effectively failed to brief this issue and has thus conceded error. We reverse the juvenile court's denial of the father's petition to modify and its order terminating parental rights as to minor. We find no prejudicial error on the ICWA notices.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn1

Mother had a history of prostitution, domestic violence, and mental health problems.*fn2 In April 2009, she left the children at a crisis nursery and did not return to pick them up. After an unsuccessful placement with the maternal grandmother, the children were taken into protective custody. The Department filed petitions under Welfare and Institutions Code section 300,*fn3 seeking to have the children declared dependents. The children had lived together their entire lives and were closely and positively bonded. They were detained and placed in foster care together.

Father, a non-custodial and nonoffending parent, was not living with mother at the time the children were placed in protective custody. He was, however, present at the hospital when minor was born, and was named as the father on her birth certificate and on a declaration of paternity. Two subsequent paternity tests excluded father as minor's biological father. Father lived with mother and minor for approximately 18 months after minor was born. During that time, "he was the [minor's] natural father for all intents and purposes and had the child in his home and supported the child with a home and the basics of food and clothing." The declaration of paternity was rescinded in 2007, based on a paternity test. When the relationship between mother and father ended, he continued to regularly visit minor three to five times a week until approximately February 2009. On October 28, 2009, father was declared the presumed father of minor. The juvenile court ordered father to address his homelessness, life choices and other factors before he could be considered for placement.

In November 2009, the juvenile court sustained the allegations of the first amended petitions. The petitions alleged that mother had a history of substance abuse from which she had failed or refused to rehabilitate, that she had failed to maintain consistent contact with the children, and that she had failed to provide them with adequate food, clothing, and shelter. The children were declared dependents of the court and reunification services were ordered for mother and father. Father was ordered to submit to drug testing and to attend general counseling and parenting classes. He was also advised to maintain regular visitation with the children.

In May 2010, a six-month review hearing was held. Father did not appear at the hearing because of confusion about the dates. His counsel's request for a continuance was denied.

At the time of the review hearing, the children were happy and content in their foster home, where they had been placed in October 2009. They had a good bond with each other. According to the social worker's report, they appeared to be bonded with the foster mother. No information was provided indicating the basis of the social worker's opinion of apparent bonding between the foster mother and the children. The social worker referenced only one visitation she supervised.

The children were observed to be bonded with father. Father had two-hour visits with the children twice a week. The children were excited and happy to see father, sad when he left, and asked about him often. Father maintained regular and consistent contact with the children. He complied with court-ordered random drug testing, and all tests were negative. Father also advised the social worker he had completed parenting classes, was receiving support from his family, and was attending college. The social worker believed father had demonstrated the capacity and ability to complete the objectives of his plan and to reunify with the children. However, father remained homeless. Father attended his monthly face-to-face meetings with the social worker in four of the five months preceding the social worker's April 2010 report, but his homelessness created difficulties in contacting him. In addition, father's homelessness and lack of income continued to represent barriers in his ability to reunify with the children.

The social worker testified at the review hearing based on memory and apparently without having refreshed her recollection. She did not have father's case plan in front of her when she testified.*fn4 While father told the social worker and his attorney that he had completed his parenting classes, the social worker testified that she was unable to verify completion prior to the hearing. She testified that she had left a message with the agency, but had not yet heard back. Nevertheless, the social worker recommended father receive further reunification services "in order to be given more time in which to obtain housing and employment."

Counsel for the children argued that the inability to confirm that father had completed parenting classes indicated he had not. Despite the fact that father was a non-custodial and nonoffending parent, counsel for the children argued that "there has been no movement or progress to alleviate the circumstances that brought these children before the court. There is no indication of when those circumstances might have changed. There is no evidence that he is on some trajectory to alleviate any of those circumstances. There is, essentially, no indication in the evidence before the Court today that in another six months we are going to be in any different position than we are [in] today."

The court noted the report was "extremely brief in describing what the father has done or not done," there was no verification of father participating in parenting classes, and father had been vague about his source of income, his living situation and his education. The court specifically noted father's homelessness as a reason to deny an extension of services. The court said, "As far as we can tell, he's still homeless. Not able to provide a place for the children to live. He's not here today. Basically, what I'm going to conclude by a preponderance of the evidence is that he has not made any efforts other than possibly testing on a regular basis for 60 days to have the right to extend services to the 21F hearing." (Italics added.) Accordingly, the court found father's progress in alleviating the cause necessitating placement was minimal. Reunification services for both parents were terminated and the matter was set for a section 366.26 hearing.

On August 23, 2010, father filed section 388 petitions to modify the court's order as to both children, requesting they be placed with him or that he be offered further reunification services. Father provided evidence he actually had completed parenting classes in November 2009, stated he had tested clean on drug tests, and had had good visits with the children. He also provided evidence that he had rented a two-bedroom apartment. The juvenile court denied the petition as to sister without a hearing because father was not her legal father and lacked standing as to her. A hearing was set on the petition regarding minor; the parties stipulated to continue the hearing to October 25, 2010.

On October 21, 2010, father filed another set of modification petitions as to the children. In the petitions, he stated that he had completed his case plan, addressed his homelessness, visited the children consistently, and the children were very bonded with him. Again, the petition as to sister was denied on the ground that he was not her father. As to minor, the matter was set for hearing.

On October 25, 2010, the juvenile court held a hearing on father's petition to modify as to the minor. Counsel for father stated she wanted both modification petitions concerning the minor to remain active. At the outset, the Department indicated it agreed that reunification services should be reinstated for father and maintained that position at the ...


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