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In re L.S.

California Court of Appeals, Third District, El Dorado

October 24, 2014

In re L.S., Jr., et al., Persons Coming Under the Juvenile Court Law.
J.S. et al., Defendants and Appellants. EL DORADO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

APPEAL from a judgment of the Superior Court of El Dorado County Nos. SDP20130007 & SDP20130008, Dylan M. Sullivan, Court Commissioner.

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Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant J.S.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant L.S.

Edward L. Knapp, County Counsel, and Lauren C. Bowers, Deputy County Counsel, for Plaintiff and Respondent.



J.S. (mother) and L.S. (father), parents of the minors, appeal from orders of the juvenile court denying their petitions for modification and terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; undesignated statutory references are to the Welfare and Institutions Code.) The parents contend the court applied the wrong burden of proof in

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denying their petitions for modification and abused its discretion in concluding there was insufficient evidence to grant the requested modification.[1] The parents also contend the court and the El Dorado County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901 et seq.) Finally, the parents argue the court erred in failing to find they had established the beneficial parental relationship exception to termination of parental rights. We conclude that the juvenile court’s failure to apply the proper burden of proof in ruling on the petitions for modification and the errors in the ICWA notice require reversal.


Following the parents’ request in January 2013 for a court-ordered case plan, the Agency filed petitions alleging the minors, L.S., Jr., age six, and T.S., age eight, were at risk because the parents were homeless, the minors were suffering emotional difficulties and the parents had not engaged in the voluntary service referrals.[2] Various stresses in the family caused a breakdown of the family unit and increased emotional difficulties with the minors leading to the parents’ request for help. The court did not detain the minors.

The jurisdiction report stated that, after the initial hearing, mother told the minors they might be placed in foster care and T.S. became hysterical. The social worker was able to calm T.S. and told mother such a conversation was inappropriate. Mother saw nothing wrong with it, believing the minors deserved to know what was going on. The social worker instructed mother not to discuss the case with the minors. Appropriate referrals were made and the parents were looking for housing. The court sustained the petitions.

Two weeks after the jurisdiction hearing, the Agency filed supplemental petitions (§ 387) alleging mother called the social worker and asked to have the minors placed in foster care for their safety because the family was homeless. The minors were taken into protective custody and, during the removal, told the social worker that father instructed them “ ‘not to tell the truth’ ” about where they had been staying or they would be placed in foster care. Prior to the detention hearing, T.S. was upset because father was mad at her for what she had told the social worker. T.S. became hysterical, crying and apologizing for saying something that got the parents in trouble. The court ordered the minors detained.

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The report for the jurisdiction hearing for the section 387 petitions stated that mother admitted she and father had relapsed and used methamphetamine. Father minimized his drug use and blamed mother for his relapse. Prior to the jurisdiction hearing on the supplemental petitions, the Agency filed subsequent petitions (§ 342) based on the parents’ substance abuse history and current use.

The April 2013 disposition report stated both parents were in inpatient drug treatment programs and were compliant with program requirements. At visits, the parents were attentive and nurturing, open to redirection, able to set limits and able to interact with the minors individually. However, there were visits which became highly emotional and they would complain and argue in front of the minors. The parents also had an ongoing problem with talking about the case or other adult matters at visits. As a result of parental emotional responses and discussion of inappropriate matters, the quality of visits was inconsistent. The minors always had difficulty after visits, being more emotional and less cooperative. The social worker recommended bypassing services for mother because services and parental rights were terminated as to a sibling (§ 361.5, subd. (b)(11)) and for both parents due to their recent resistance to prior court-ordered drug treatment (§ 361.5, subd. (b)(13)).

The court denied services to the parents at the contested disposition hearing in May 2013 and set a section 366.26 hearing for September 18, 2013. The report for the section 366.26 hearing concluded the minors were likely to be adopted as their ongoing behavioral problems were improving with stability in the foster home. The minors looked forward to visits although L.S., Jr., was anxious both before and after visits. The report indicated that the problems which led to the dependency were ongoing and the minors needed a permanent stable home.

Two days before the scheduled section 366.26 hearing, the parents filed petitions to modify the court’s bypass order seeking an order for reunification services. The parents alleged, as changed circumstances, they were actively participating in services on their own and father was employed. The parents further alleged the proposed order was in the minors’ best interests because the minors were bonded to them and reunification was the best permanent plan for them. The court ordered a contested hearing on the petitions and combined the hearing with the section 366.26 hearing.

At the hearing in October 2013, there was a discussion of the proper burden of proof for the petitions for modification of the prior bypass order. The Agency argued the parents had to show by clear and convincing evidence that providing services was in the minors’ best interests while ...

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