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In Re Alexis D., A Person Coming Under the Juvenile Court v. Michelle D

August 27, 2012

IN RE ALEXIS D., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
MICHELLE D., DEFENDANT AND APPELLANT.



(Super. Ct. No. JD228674)

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

In re Alexis D.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Michelle D., the mother of four-year-old Alexis D., appeals from an order of the Sacramento County Juvenile Court terminating her parental rights.

On appeal, mother contends (1) no substantial evidence supports the juvenile court's selection of adoption as the permanent plan because the beneficial parental relationship exception applies, and (2) the juvenile court erred by failing to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912). We conclude that mother failed to raise the beneficial parental relationship exception in the juvenile court and has forfeited this argument on appeal. On the merits, we conclude that mother has failed to meet her burden that the trial court erred by not applying this exception. With regard to the ICWA, we conclude that the matter must be remanded to allow the juvenile court to ask father about his Indian heritage and order him to complete the form ICWA-020. Accordingly, we vacate the orders terminating parental rights and must remand the matter for the limited purpose of permitting the trial court to comply with the inquiry and notice provisions of the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

Originating Circumstances

Mother was born in September 1987 and was raised in foster care from age 11 to age 18. She resided in transitional housing for former foster youth.

Mother has an extensive history with the Sacramento County Department of Health and Human Services (Department) dating back to 2007. The referrals involved allegations of her general neglect of Alexis. For example, in December 2007, almost immediately following Alexis's birth, a referral was received because mother had been unaware of her pregnancy until her eighth month and had not obtained prenatal care. Mother was reported to be low functioning, and she lacked awareness of the minor's basic needs. Furthermore, mother did not return home one night as required by housing program regulations. The Department substantiated the referral.

In February 2008, the Department received a referral that mother had complained she is "a prisoner" to Alexis. The Department substantiated that Alexis was gaining weight very slowly. Mother had stated she would not feed Alexis for fear she would "get fat." Mother had little interaction with Alexis, whom she left sitting in her carrier for extended periods of time.

In July 2008, the Department received a referral indicating mother was about to lose her transitional housing due to noncompliance with housing rules.

Two weeks later, housing staff informed a Department social worker that mother had been observed pinching Alexis's legs until she cried.

The next day, housing staff reported that mother had thrown Alexis into the air and had failed to catch her. Alexis fell to the floor and sustained a bump on her head. Mother took Alexis to an emergency room only after housing staff had told mother to do so.

In August 2008, as a result of mother's lack of supervision, Alexis fell off her bed. Housing staff advised mother to take Alexis to an emergency room.

Twice in September 2008, mother resisted taking Alexis to a hospital or urgent care provider for treatment of mosquito or bed bug bites. The bites on Alexis's eyes were so large that one eye was almost swollen shut.

In October 2008, mother left her transitional housing for several days without returning telephone calls from housing staff. She later claimed she had been unable to awaken for the several days because she had taken Nyquil.

Later that month, housing staff found an unidentified male hiding under a pile of laundry in a closet of mother's apartment. Mother claimed not to know the male, but she did not file a police report regarding the incident. Mother later claimed she knew the man only by a nickname.

In November 2008, Alexis was found crying after mother had left her unattended in the apartment with the door open. Mother had asked an approved resident to care for Alexis while she went to a store. However, mother did not return until the following morning. Mother had not equipped the caretaker to care for Alexis overnight.

On November 13, 2008, Alexis was placed into protective custody.

Petition

The Department filed a petition alleging that Alexis was within Welfare and Institutions Code*fn1 section 300, subdivision (b), in that she was at substantial risk of physical harm or illness because mother refused to participate in family maintenance services, continuously left Alexis unattended and/or with inappropriate/unapproved caretakers, and must be prompted to attend to Alexis's medical needs.

Detention

At the initial hearing in November 2008, Alexis was detained.

Jurisdiction and Disposition

The report for the jurisdiction and disposition hearing indicated that the whereabouts of Elijah C., the father, were unknown, and a due diligence search had not located father.*fn2 However, at the March 20, 2009, pre-trial jurisdictional/disposition hearing, father appeared for the first time in these proceedings.

At the jurisdiction hearing, the juvenile court sustained the petition's allegations and continued the disposition hearing.

At the disposition hearing, the juvenile court adjudged Alexis a dependent, placed her with mother, ordered family maintenance services for mother, and ordered reunification services for father.

Six-Month Review

The report for the review hearing stated that mother had left Alexis with an unapproved caretaker while she held a birthday party for herself in a rented motel room. Mother invited minors to the party and provided alcohol to them. Because mother had left Alexis with an unapproved caretaker and had furnished alcohol to minors, she became ineligible to move from her current transitional housing to a more permanent supportive housing facility.

The report noted that housing staff had "multiple concerns" with the supervision mother provided to Alexis. Mother had to be counseled repeatedly regarding "the cleanliness of her apartment or supervision of the child." The apartment often was dirty, messy, and in disarray. Food was left on the tables and floor, and garbage and papers were strewn everywhere. Alexis had been observed eating food off the floor.

Furthermore, mother was unwilling or unable to arrange daycare for Alexis. Consequently, in November 2009, mother had to delay re-entering her vocational program.

The report noted that a therapist with the University of California at Davis CAARE center*fn3 had expressed concerns regarding Alexis's language development, but mother appeared to be unconcerned about the issue.

The therapist also was concerned about mother's ability to integrate material from her parent-child interaction therapy into her daily life. The therapy's purpose was to improve the quality of the parent-child relationship and to change parent-child interaction patterns. The therapist noted that mother had a flat affect, no enthusiasm, and did not appear to retain information from week to week. She recommended a medication evaluation to treat her depression and ...


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