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In re Ray M.

California Court of Appeals, Second District, First Division

December 16, 2016

In re RAY M., a Person Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
RAY M., Appellant. In re RAY M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
v.
RAY M., Defendant and Appellant

          CONSOLIDATED APPEALS from orders of the Superior Court of Imperial County, No. JJP02715, No. JJL26173, William D. Quan, Judge and Juan Ulloa, Judge.

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         COUNSEL

         Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

         Katherine Turner, County Counsel, Haislip W. Hayes and Laura Berumen, Deputy County Counsel, for Plaintiff and Respondent in No. D070157.

         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Julie L. Garland, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent in No. D070174.

          OPINION

          [211 Cal.Rptr.3d 798] McCONNELL, P. J.

          Ray M. appeals orders of the Imperial County juvenile court denying his motion to conduct a new assessment under Welfare and Institutions Code section 241.1[1] and declaring him a delinquent ward under section 602. Ray filed his motion after the Kern County juvenile court determined he should be deemed a ward, and not a dependent, without providing notice to his dependency attorney or to the Imperial County Court as required by section 241.1 and California Rules of Court, rule 5.512.[2] Ray also contends, and the Imperial County Department of Social Services (Department) concedes, that the juvenile court erred at the outset of the dependency by failing to provide notice as required by the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). [211 Cal.Rptr.3d 799] We agree with Ray that because the Kern County juvenile court did not comply with the notice requirements set forth in section 241.1 and rule 5.512, the Imperial County juvenile court had the authority to revisit the Kern County Court's assessment under section 241.1. Accordingly, we reverse the orders and remand the case for the juvenile court assigned to hear Ray's dependency matter to conduct a new assessment under section 241.1 and, if Ray is deemed a dependent, to comply with the notice provisions of ICWA.

         FACTUAL AND PROCEDURAL BACKGROUND

         Ray, his older brother David M., and their two younger half siblings were removed from the custody of their mother, Teresa P., in November 2012, after she was arrested for disturbing the peace and child endangerment. The police were called by neighbors because of loud music coming from the home during the early hours of the morning. When the police arrived, they found

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Teresa intoxicated and belligerent. The home was filled with trash and the social workers called to the scene described it as deplorable. Teresa was arrested and the four minors were taken into protective custody.

         The Department filed petitions under section 300 on behalf of Ray and David, alleging they were at substantial risk of suffering serious physical harm or illness as a result of Teresa's inability to protect them.[3] At the time, Ray was 12 years old and David was 15. Teresa had a long history of involvement with the Department related to allegations of neglect and also had several prior criminal convictions. Teresa had participated in a voluntary family maintenance case with the Department from August 2011 to August 2012, and during that time received mental health counseling and substance abuse services. After the minors were taken into custody, however, Teresa became completely uncooperative with the Department.

         At the detention hearing, the juvenile court found the Department had made a prima facie showing that Ray and David were minors described under section 300 and ordered them detained. After being taken into protective custody Ray and David both tested positive for methamphetamine and the Department amended the petitions to include the positive drug tests. At a hearing on the amended petition the following month, the court again found the Department had made a prima facie showing that the minors were described by section 300. At the hearing, the minors' father made his first appearance. He requested placement of the minors and also stated he might have Cherokee heritage. By January, however, he lost contact with the Department and failed to return numerous telephone calls from the family's social workers.

         Before the contested jurisdiction and disposition hearing in February 2013, Ray and David were placed in separate foster homes. The court appointed special advocate (CASA) for the minors reported that Ray disclosed to her that Teresa had subjected him to severe physical abuse. At the hearing, the court declared Ray and David dependents and removed them from parental custody. The court ordered reunification for both parents and continued the minors' foster placements. The following month, Ray and David's maternal uncle, [211 Cal.Rptr.3d 800] Omar P., and his wife, Bianca P., who resided in Arizona, requested placement of the minors. The Department requested and received an order from the juvenile court for an evaluation of Omar and Bianca's home under the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). Ray and David were placed with Omar and Bianca in Arizona the following June.

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         For the six-month review hearing, the Department reported that Teresa had failed to participate in any reunification services. The Department requested that services be terminated before the 12-month review hearing and that the court set a permanency planning hearing under section 366.26. The social worker assigned to the case stated Teresa wanted to regain custody of the minors, but steadfastly refused to cooperate with the Department or to visit with Ray and David under the Department's supervision. Ray had started attending therapy on a weekly basis and had disclosed further details about the physical abuse he and his siblings had suffered while in Teresa's care. Ray told the therapist that Teresa beat them with belts, pipes, wires, and burned them with metal utensils. At the time of the six-month review hearing, Ray and David were both doing poorly in school, and Ray had been suspended from school several times for fighting.

         The minors' counsel joined in the Department's request to terminate reunification services and set a permanency planning hearing. After a contested hearing in August 2013, the juvenile court terminated both parents' services and set a permanency planning hearing for December 2013. Thereafter, Ray continued to struggle academically and with anger issues. He was diagnosed with attention deficient and hyperactivity disorder and prescribed medication. In its report for the permanency planning hearing, the Department stated that Omar and Bianca, who remained the minors' caretakers, loved them and wanted to continue to care for them, but were not willing to consider adoption because of the financial commitment it entailed. The Department also reported that the ICPC request for a foster care license had been closed because Omar and Bianca had not provided requested documentation. At the permanency planning hearing, the juvenile court ordered the minors to continue their placement with Omar and Bianca, and set a subsequent review hearing under section 366.3.

         Before the next hearing, Omar and Bianca notified the Department that they were no longer willing to continue to care for Ray and David because they required constant supervision and were impacting their ability to care for their own two children. In February 2014, the minors were placed in a group home in San Diego, California. Once at the group home, Ray began experimenting with drugs and alcohol, engaged in aggressive behavior toward David, and also fell in with other residents who were affiliated with a local gang. As a result, in June 2014, Ray was moved to another group home in nearby La Mesa. There, however, Ray continued to use drugs, ran away several times and exhibited aggressive and disruptive behavior. After an episode in which Ray attacked another group home resident, he was moved again to a group home in Mentone, California in San Bernardino County.

         While in Mentone, on December 19, 2014, Ray was arrested for robbing a convenience store with two other individuals. The San Bernardino County

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District Attorney filed a petition alleging Ray was within the jurisdiction of the juvenile court under section 602. The matter was transferred to Imperial County. The probation department in Imperial County, with the [211 Cal.Rptr.3d 801] agreement of the Department, submitted a report under section 241.1 recommending that Ray be designated a ward of the juvenile court under section 602, rather than a dependent under section 300. The report stated that Ray had been suspended from the middle school he was attending multiple times since his placement in Mentone, was failing all of his classes, admitted to regular drug and alcohol use, and was associating with gang members. In January 2015, the Department also submitted a proposal for Ray to remain a dependent but to enter an intensive, structured program in Michigan where he would receive individual and group therapy, alcohol and drug treatment, medication support and anger management services.

         At the March 10, 2015 hearing on the section 241.1 assessment report to determine Ray's status, Ray's attorney, James Smith, argued he should remain a dependent. Smith asserted the Department had not adequately dealt with the underlying trauma Ray had suffered in Teresa's care. The juvenile court agreed. The court found Ray's interests were best served by remaining a dependent and being provided with additional services through the dependency system. The parties agreed at the hearing that the Department would pursue the placement in Michigan and start the ICPC process. Because of Ray's behavior, however, finding an immediate placement was difficult. Once released from juvenile hall, he was placed in another group home but then removed several days later after punching another resident. Thereafter, he was placed in another group home in San Diego.

         In its report for a section 366.3 review hearing in July 2015, the Department indicated Ray's current placement was in jeopardy. Ray continued to act out aggressively. In August 2015, the Department again recommended that the court order Ray placed at the program in Michigan, and in September the juvenile court specifically ordered the Department to start the ICPC process for that placement.

         The record is sparse from September 2015 to January 2016. Ray was eventually moved to the Tehachapi Mountain Boys Home in Kern County. Then, on January 21, 2016, he was arrested for brandishing a knife at another resident of the home. On January 25, 2016, the Kern County district attorney filed a petition on Ray's behalf alleging he was within the jurisdiction of the juvenile court under section 602. The following day, January 26, 2016, the Kern County juvenile court conducted a delinquency detention hearing. After appointing Public Defender Stephen J. Adelson as counsel for Ray, the court found detention was necessary and set a hearing for a joint assessment under section 241.1.

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         The following day, January 27, 2016, a review hearing under section 366.3 was scheduled in Ray's dependency case. At the hearing, the court noted it had not received a report from the Department for Ray. The Department requested a continuance and Ray's counsel, Smith, stated that he was " told by the social worker that Ray got into some trouble in Bakersfield" and that he knew things were " in flux" as a result and, therefore, he did not oppose a continuance. The court continued the hearing to February 22, 2016.

         On February 2, 2016, a report titled " WIC 241.1 Joint Assessment Notification to the Court" and signed by a representative of the Kern County Probation Department was filed with the Kern County juvenile court recommending wardship for Ray. The report stated that Ray's case " was reviewed and assessed by Joel Walton and Steven Webdell of the Kern County Probation Department and by Esther Martinez of the Imperial County Department [211 Cal.Rptr.3d 802] of Children and Family Services." [4] The four-page report recounted Ray's arrest and contained a brief ...


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