Filed 3/30/23 In re M.S. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re M.S., a Person Coming Under B315043
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK98630A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie M. Davis, Judge Pro Tempore. Conditionally
reversed and remanded with directions.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
In dependency proceedings triggered by domestic violence
between N.S. (Father) and S.E. (Mother), the juvenile court
placed their daughter M.S. (Minor) under the legal guardianship
of maternal relatives and ordered monitored visitation for Father.
We are asked to decide whether the juvenile court’s decision not
to grant Father unmonitored visitation was an abuse of its
discretion. We also consider whether the juvenile court and the
Los Angeles County Department of Children and Family Services
(the Department) complied with their obligations under the
Indian Child Welfare Act (ICWA) and related California law.
I. BACKGROUND
Father and Mother have one child, Minor, born in July
2012. In April 2013, the juvenile court asserted dependency
jurisdiction over Minor as a result of an incident in which Mother
bit Father and the couple fell to the floor “wrestl[ing]” over a cell
phone. Minor remained placed with her parents during the
dependency proceedings, and the juvenile court terminated
jurisdiction in May 2014.
In February 2017, Mother was arrested for punching and
biting Father while he was driving a car with Minor inside.
Father told police he and Mother were arguing about
“relationship issues” and he pushed her away as she punched and
spit at him. Mother told police Father punched her in the face
while he was driving and she was “extremely scared of [Father]
because [he] beat[ ] her every night.” Minor, then four years old,
told police her parents had been arguing “[v]ery loud” and Mother
hit Father “[a] lot.”
In April 2017, the Department filed a dependency petition
alleging Minor was at substantial risk of serious physical harm
2
based on Mother and Father’s history of domestic violence in
Minor’s presence.1 The petition alleged both that Mother struck
and bit Father and that Father “pushed [Mother’s] face.” It
further alleged that, “[o]n prior occasions, [Father] struck
[Mother].”
The juvenile court ordered Minor detained from Mother
and Father’s care, and she was placed with her maternal step-
grandfather. Both parents were granted three (separate) visits of
three hours each per week.
In follow-up interviews with the Department in May 2017,
Father disclosed he and Mother often had verbal arguments.
Police had come to their home on several occasions because
neighbors complained about the noise and Father sometimes
sought help when Mother “[got] out of hand.” Minor said she was
scared of her parents fighting, but she did not recall what
happened between them in the car that triggered the filing of the
dependency petition. The maternal grandmother said Minor
“panic[ked]” when she or the maternal step-grandfather raised
their voices “even a little bit.”
The juvenile court sustained the dependency petition and
asserted jurisdiction over Minor in July 2017 based on domestic
violence between the parents and Mother’s marijuana use.
Father was ordered to complete a parenting class and participate
in individual counseling.2 He was granted monitored visitation.
1
In an amended petition filed in June 2017, the Department
further alleged Minor was at risk of physical harm due to
Mother’s marijuana use.
2
Father told the social worker he believed his case plan was
“forged” because there was “a line drawn through the 52-week
domestic violence.” The juvenile court subsequently “verified
3
Just a couple months later, in October 2017, law
enforcement officers arrested Father after he pushed Mother to
the ground during an argument and subsequently climbed onto
her car and broke the windshield.
As of December 2017, the Department reported Father had
not visited with Minor since her birthday in July. Father
attributed the lack of visitation to Minor’s maternal step-
grandfather “not answer[ing] his phone often.” The Department
reported, however, that Minor’s caregivers “remained flexible
with visitation and . . . offered to transport [her] to a location
closer to [F]ather’s whereabouts for visitation, but [F]ather
continue[d] to demonstrate a pattern of inconsistency in regards
to visitation” and did not “ma[k]e himself available to the
Department to further discuss visitation.” Minor’s maternal
step-grandfather indicated that, during previous visits, Father
“engage[d] in rough play” with Minor and allowed her “to
aggressively punch” him.
Nearly a year later, the Department reported Father had
not begun individual counseling ordered as part of his case plan.
Father told a Department social worker he would not enroll in
any programs because he did not have a problem and did not
believe he was required to do so. Father maintained he was a
“‘perfect parent’” and had not done anything wrong.
The juvenile court terminated family reunification services
for both parents in December 2018, finding they had made
“minimal” progress in their case plans. By the summer of 2019,
Father’s case plan did not require him to complete a 52-week
domestic violence program, but he was required to do individual
counseling and parenting.”
4
the Department reported Father was visiting Minor about twice
per month and Minor’s caregivers felt the visits were beneficial.
One of Minor’s caregivers reported Father had been “more
consistent with his visits and ha[d] built a good relationship with
the child.” The Department also later reported Father visited
Minor every Saturday at her caregivers’ home and the caregivers
were “willing to facilitate visits with him even after the legal
guardianship is final.”
Regular, beneficial visits continued through the first half of
2021 and Minor’s caregivers told the Department Father
“remain[ed] engaged with the child throughout his visit[s].” The
caregivers had “no worries or concerns towards [F]ather’s visits
with [Minor],” and Minor reported she enjoyed the visits. In
addition to in-person visits on weekends, Father indicated he and
Minor talked on the phone and played video games together
during the week.
In September 2021, on the eve of the hearing on the
selection and implementation of a permanent plan for Minor,
Father filed a changed circumstances petition asking the juvenile
court to take the hearing off calendar and either place Minor in
his custody or order further reunification services based on his
consistent visitation and completion of the parenting class (14
sessions). The juvenile court denied Father’s petition.
During the hearing at which the juvenile court ordered
Minor placed under the legal guardianship of her maternal
grandmother and step-grandfather and terminated jurisdiction,
Father requested that he be granted unmonitored visitation
based on his consistent visitation, completion of a parenting
class, and “stable” lifestyle. Father alternatively requested the
court order unmonitored visits inside the home of the legal
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guardians or grant the legal guardians discretion to allow
unmonitored visits. Counsel for Minor “submit[ted] the issue of
liberalizing Father’s visits further to the court,” but noted that
although Minor “ha[d] expressed that she does want unmonitored
visits,” there was “not much information about [Father’s]
compliance in domestic violence programs.” The Department
opposed Father’s request for unmonitored visitation because,
despite his completion of a parenting class, “he still ha[d]n’t
gained insight and he still ha[d] a massive amount of his case
plan that he previously had the opportunity to complete . . . .”
The juvenile court ordered only monitored visitation for
Father. The court reasoned as follows: “When the court orders a
case plan for a parent, the purpose of the case plan is for the
parent to complete the case plan so that they can either have the
child—so they can have the child returned to them. Time has
run out, and permanency planning is done. The case plan and
lack of completion is still relevant to the court because it allows
the court to determine and assess the safety issues moving
forward with respect to the child. [¶] . . . [¶] When the court
assessed [Mother and Father’s changed circumstances] petitions,
the court found . . . that neither parent ha[d] made any
substantial progress in completing the case plan, and that is
what the court has to gauge and use to evaluate the continuing
safety for the child. [¶] The Father’s—the only proof of
completion is a parenting class. That does not address all of the
issues that brought the case before the court. . . . So there
remain[ ] ongoing safety issues, which the court believes justify
the monitored visitation.”
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II. DISCUSSION
Father contends the juvenile court’s monitored visitation
order was an abuse of discretion because there was no cause for
concern regarding Minor’s safety in his care when the juvenile
court terminated jurisdiction in September 2021. This argument
lacks merit under the governing deferential standard of review.
The fact that Father was arrested for domestic violence after the
juvenile court assumed jurisdiction over Minor plus Father’s
refusal to complete his court-ordered case plan provides adequate
support for the juvenile court’s determination that Minor should
not yet be in his unsupervised care.
Father also contends the juvenile court’s order terminating
jurisdiction must be reversed and the matter remanded for
compliance with ICWA. The Department agrees. As we shall
explain, the juvenile court’s failure to ask a relative present at
the detention hearing whether he had information relevant to
whether Minor is an Indian child under ICWA does warrant a
conditional reversal of the juvenile court’s order.
A. The Juvenile Court Did Not Abuse Its Discretion in
Ordering Monitored Visitation
When the juvenile court orders a permanent plan of legal
guardianship, it “shall also make an order for visitation with the
parents or guardians unless the court finds by a preponderance of
the evidence that the visitation would be detrimental to the
physical or emotional well-being of the child.” (Welf. & Inst.
Code,3 § 366.26, subd. (c)(4)(C).) At this stage of the proceedings,
3
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
7
the child’s need for permanency and stability is paramount. (In
re S.H. (2011) 197 Cal.App.4th 1542, 1559.) We review the trial
court’s visitation order for abuse of discretion. (Id. at 1557-1558;
In re Rebecca S. (2010) 181 Cal.App.4th 1310, 1314.)
Father contends the juvenile court erred by ordering
monitored visitation based on “factors that did not create a safety
risk to [Minor].” It was appropriate, however, for the juvenile
court to consider Father’s failure to complete his case plan and
his related insistence that he was a “perfect” parent. The
passage of time since Father had been arrested for pushing
Mother and breaking her windshield in October 2017 does not
demonstrate the lack of a safety risk to Minor. Mother and
Father had a long history of domestic violence, extending back to
the 2013 dependency proceedings,4 and the October 2017 violence
that led to Father’s arrest occurred after the juvenile court had
assumed jurisdiction over Minor and while dependency
proceedings were still underway. That Father would engage in
such violence even while under the supervision of the juvenile
court and the Department could rightly give the juvenile court
pause in permitting unmonitored interaction between Father and
Minor without more evidence Father in the interim had
addressed domestic violence issues (or even acknowledged he had
such issues).
Father believes, though, that the juvenile court should have
given greater weight to his regular, positive visitation with
4
Indeed, the time between the earlier dependency
proceedings in 2013 and the start of these proceedings in 2017 is
roughly comparable to the time between the October 2017
pushing and windshield breaking incident and the September
2021 hearing that is the focus of this appeal.
8
Minor. Beneficial monitored visits do not, however, demonstrate
that unmonitored visitation presented an acceptable level of risk.
In any case, the argument is also self-defeating.
Notwithstanding Father and Minor’s shared desire that their
visits be unmonitored, nothing in the record suggests Minor’s
interests—the juvenile court’s focus at this stage of the
proceedings—would be better served by unmonitored visitation.
By all accounts, Minor was doing well under the status quo of
monitored visitation and her legal guardians were flexible and
accommodating.
B. Remand Is Required Because the Juvenile Court Did
Not Make Inquiry of a Detention Hearing Participant
Prior to the detention hearing in April 2017, both Mother
and Father filed ICWA-020 Parental Notification of Indian
Status forms indicating they were not aware of any Indian
ancestry. During the hearing, when the juvenile court indicated
it was unlikely to release Minor to Mother or Father, Mother’s
attorney asked the court to consider placement with the maternal
grandmother or, in the alternative, “a second cousin who [was] in
the courtroom . . . by the name of [S.L.] . . . .”
Notwithstanding Father and Mother’s written attestations
that they had no Indian ancestry, Father contends the juvenile
court and the Department’s ICWA-related inquiry fell short in
several respects. These include the juvenile court’s failure to
verbally confirm the parents’ representations, the juvenile court’s
failure to order the parents to inform the court if they
subsequently received information providing a reason to know
Minor is an Indian child, and the Department’s failure to
9
interview other known relatives.5 The Department “agrees the
order terminating jurisdiction should be reversed for the sole
purpose of remanding the matter for compliance with the ICWA
inquiry mandates.” We shall reverse and remand to permit
inquiry of S.L., who was present at the detention hearing, and
any additional extended family members the juvenile court
directs.
Federal regulations implementing ICWA require state
courts “at the commencement of the proceeding” to ask “each
participant” in child custody proceedings whether they know or
have reason to know that the child is an Indian child and to
instruct the participants to inform the court if they subsequently
receive information that provides reason to know the child is an
Indian child. (25 C.F.R. § 23.107(a).) In adopting these
regulations, the Bureau of Indian Affairs explained “[t]he court is
to ask each participant in the proceeding, including attorneys,
whether they know or have reason to know that the child is an
Indian child. Such participants could also include the State
agency, parents, the custodian, relatives or trial witnesses,
depending on who is involved in the case.” (81 Fed. Reg. 38803,
emphasis added.) California law similarly provides that, “[a]t the
first appearance in court of each party, the court shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child. The court
shall instruct the parties to inform the court if they subsequently
5
The other relatives Father mentions in his opening brief
include Minor’s maternal great-grandmother; maternal
grandmother, grandfather, and step-grandfather; two maternal
aunts; paternal grandmother, grandfather, and step-grandfather;
and two paternal aunts.
10
receive information that provides reason to know the child is an
Indian child.” (§ 224.2, subd. (c).)
We believe S.L. qualifies as a “participant” under section
224.2, subdivision (c) and it was error for the juvenile court not to
make ICWA inquiry of S.L. That error alone necessitates a
remand.
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DISPOSITION
The juvenile court’s monitored visitation order for Father is
affirmed. The order terminating dependency jurisdiction is
conditionally reversed and the cause is remanded with
instructions to comply with section 224.2, subdivision (c) and, as
conceded by the Department, section 224.2, subdivision (b).
If the aforementioned inquiry results in information
indicating there is reason to know Minor is an Indian child, the
juvenile court shall proceed in accordance with ICWA and related
California law. If the aforementioned inquiry does not result in
information indicating there is reason to know Minor is an Indian
child, the court’s order terminating jurisdiction shall be
reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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