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In re Francisco D.

California Court of Appeals, Second District, Third Division

September 29, 2014

In re FRANCISCO D., a Person Coming Under the Juvenile Court Law.
v.
SHIRLEY S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,

APPEAL from a judgment and an order of the Juvenile Court of Los Angeles County, No. CK98476 Jacqueline Lewis, Referee.

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[Copyrighted Material Omitted]

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COUNSEL

Roni Keller, for Defendant and Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.

OPINION

KITCHING, J.

INTRODUCTION

Mother Shirley S. (Mother) appeals from the juvenile court’s jurisdictional finding under Welfare and Institutions Code[1] section 300 and dispositional order under section 361 removing her adoptive son Francisco from her care. Mother also alleges that the Los Angeles County Department of Children and Family Services (DCFS) failed to adhere to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) based on Mother’s own claim of Cherokee heritage. We affirm the juvenile court because substantial evidence supports its findings that Francisco came under the court’s jurisdiction per

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section 300, subdivision (j), that substantial danger to Francisco existed if he remained in Mother’s care, and that there were no reasonable means to protect Francisco without his removal from Mother’s custody. We also conclude that ICWA is inapplicable to Francisco’s case as Francisco is neither a member of an Indian tribe, nor is he the biological child of a member.

FACTS AND PROCEDURAL BACKGROUND

Mother and the adoptive father[2] adopted two siblings, eight-year-old Francisco and his 14-year-old sister Fabiola, in April 2010. Three years later, Fabiola suddenly developed diabetes, and then contracted influenza B and pulmonary mucormycosis, a rare fungal infection. She died shortly thereafter in March 2013 from multiple organ failure. The dependency proceedings in this case arise out of concerns for Francisco’s well being and safety, following the sudden illness and death of Fabiola. DCFS initially filed the section 300 petition for Francisco under subdivisions (b) and (j), alleging Mother’s medical neglect of Fabiola and the risk of future abuse and neglect to Francisco by Mother. At the time DCFS filed the section 300 petition, Francisco was not detained from Mother’s custody. Based on increasing concerns regarding Mother’s lack of appropriate judgment and decision making as to the medical care of Fabiola, Mother’s refusal to disclose Francisco’s whereabouts to DCFS, and Francisco’s vulnerability due to his autism, DCFS detained Francisco with a court order.

During its investigation of Mother’s home and her care of the two children, DCFS reviewed referrals from mandated reporters, relatives, and neighbors dating from 1998 to the present, all of which reported Mother’s abuse of foster and/or adoptive children. DCFS recognized a pattern of emotional, verbal, and physical abuse within the referrals, and confirmed the allegations of abuse with statements from Fabiola, a former foster child named Miracle, who was previously removed from Mother’s home due to allegations of abuse, and family members. Based on that information, DCFS amended its section 300 petition under subdivisions (b) and (j) to include its new theory that Mother habitually verbally abused Fabiola and that Francisco was at risk of emotional harm and similar abuse.

In support of its petition, DCFS provided evidence that Mother was physically and verbally abusing Fabiola and Francisco, and that Mother had a long history of foster child abuse. The evidence consisted of DCFS’s investigation into 28 referrals alleging emotional, verbal, and physical abuse

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by Mother toward Fabiola, Francisco, and various foster children, as well as interviews with family members and relevant parties, and DCFS social workers’ observations.

1. Mother’s Abuse of Fabiola and Francisco

Interviews with Fabiola and family members indicated that Mother frequently calling Fabiola derogatory names, two expletives in particular, and that Mother physically abused both Fabiola and Francisco. The abuse motivated Fabiola to run away from Mother’s home on several occasions. In June 2012, shortly after Fabiola had run away from home and returned, Fabiola reported to DCFS that Mother “had been calling her names and putting her down" (Italics added.) She also stated that Mother “lies a lot and also has her lying for her." (Italics added.) Fabiola disclosed that Mother’s biological son also “called her names and physically hit her." (Italics added.)

Fabiola reported to DCFS in May 2012 that Mother had called her derogatory names because she had an attitude and had sex with a 13-year-old boy. Fabiola also stated that Mother lied and was mean to her. On another occasion, Fabiola told DCFS that Mother hit her buttocks with a broom handle. This verbal and physical abuse was of particular significance as ...


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