In re W.H
02:19:2006
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In re W.H
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 977(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except as
specified by rule 977(b). This opinion
has not been certified for publication or ordered published for purposes of
rule 977.
CALIFORNIA
In re W.H., a Person Coming Under the Juvenile Court Law. | B182262 c/w B186915 (Los Angeles County Super. Ct. No. CK32884) |
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and v. CHARLIN H. C., Defendant and | |
APPEAL from orders of
the Superior Court of Los Angeles County,
Marilyn K. Martinez, Juvenile Court Referee.
Reversed and Remanded.
Andre F. F. Toscano
for Defendant and Appellant.
Counsel, Larry Cory, Assistant County Counsel, and Pamela S. Landeros, Deputy
County Counsel, for Plaintiff and Respondent.
C.H.C.
(Mother) is the mother of W.H. (born in September 2000, hereinafter
Minor). Minor's father is Jesse H.
M.H. (born in 1998). Mother is
currently married to Larry C. and they have two children, M.L. (born in
September 2002) and K. (born in June 2004).
The
children have been the subject of numerous appeals after they were declared
dependents of the juvenile court.
In this
consolidated case, we address two orders of the juvenile court, the order of
March 28, 2005, terminating Mother's parental
rights as to Minor, pursuant to Welfare and Institutions Code section
366.26,
and the order of the court dated August 4, 2005, reinstating the order
terminating Mother's parental rights.
Minor is the only child who is the subject of this appeal.
FACTUAL & PROCEDURAL BACKGROUND
Minor was
placed in a foster home in 2003 when
Mother came to the emergency room
complaining of injuries inflicted by Larry. Hospital workers observed
bizarre and inappropriate behavior by Mother, Minor, and M.L.
he or his friend may have sexually abused
Minor. Mother reported that Jesse
had a criminal history and was
homeless. Larry, who was arrested and
incarcerated based on these allegations, said that he and Mother had a loving
relationship but that Mother was emotionally
disturbed and that she imagined the abuse when she failed to take her
medication. Mother admitted that she
had been diagnosed with bipolar disorder
and attention deficit disorder but said that she was currently taking
prescription medication for her illnesses.
Jesse
reported that he was a member of the Apache Tribe and that his mother was part
Sioux. He claimed that Minor was
registered with the Bureau of Indian
Affairs but that he had lost her
registration card. On October 7,
2004, at the section 366.26 hearing, the Department
of Children and Family Services (DCFS) reported that Minor related well to
her foster mother, her cognitive development was age-appropriate, and that she
had bonded with her two sisters who were in the same foster home.
and for some reason they had stopped during the period from May to July
2004. At this time counsel for the
Department noted that he had to verify if proper notice had been given pursuant
to the Indian Child Welfare Act (25
U.S.C.§ 1901 et seq., hereinafter ICWA) and the court continued the matter
until November 9, 2004.
On October
25, 2004, Mother filed a section 388 petition requesting reunification services
and unmonitored visitation leading to the return of Minor and M.L. to her.
At the
November 9, 2004 hearing, the court noted that a continuance would be necessary
to ensure that ICWA notice was proper, but indicated it would proceed
nevertheless. It found that it was not
in Minor's best interests to continue visitation with Mother and that Minor was
likely to be adopted and there was no evidence it would be detrimental to Minor
to terminate parental rights. It
ordered that Mother's parental rights be
terminated as to Minor, but stayed its order pending verification of proper
ICWA notice and denied the section 388 petition. Mother filed a notice of appeal of this order (case No. B179218,
hereinafter referred to as the First Appeal).
On January
7, 2005, counsel for the Department informed the court that there were still
problems with the ICWA notice and the court continued the matter again.
ICWA notices were proper except to the San Carlos Apache Tribe, and the
Department was ordered to give them notice.
None of the tribes notified indicated any enrollment.
now confirm that proper ICWA notice had been given as it had received return
receipts and/or letters from the tribes indicating Minor was not eligible for
enrollment. The court found the ICWA
did not apply and the court lifted the stay of its November 9, 2004 order
terminating parental rights.
On April 7,
2005, mother filed a notice of appeal from the March 28th order (case No.
B182262, the Second Appeal). She
conceded that correct notices were sent to the Bureau of Indian Affairs, the
Sioux, the Yaqui and eight Apache tribes, but contended that because notice was
not sent to one of the federally recognized Apache
tribes (the Fort McDowell Mohave--Apache Indian Community), the court
should not have proceeded with the hearing on March 28th.
that all of the other notices sent in 2005 were defective because they did not
include a mandatory form (JV-135) and used an outdated form (SOC 319).
did not comply with California Rules of Court, rule 1439(f)(6) which provides
that no less than 60 days after notice has been sent, the court may determine
that the ICWA does not apply and the court made its determination less than 60
days after the notices were sent on January 31, 2005.
On July 28,
2005, we filed an opinion in the First Appeal, reversing the orders made on
November 9, 2004, and remanding the matter to the juvenile court to ensure that
proper notice was given in accordance with the ICWA. The court was directed to reinstate the orders if it found that
proper notice had been given.
On August
4, 2005, the juvenile court held a hearing pursuant to what it believed were
the instructions in our opinion filed in the First Appeal, and found that all
the notices â€
| Description | A Decision regarding termination of parental rights. |
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