Filed 4/19/16 Magdalena S. v. Superior Court CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MAGDALENA S.,

Petitioner,

v.

THE SUPERIOR COURT OF THE STATE 

OF CALIFORNIA FOR THE COUNTY OF 

LOS ANGELES,

Respondent.

LOS ANGELES COUNTY DEPARTMENT 

OF CHILDREN AND FAMILY SERVICES, 

Real Party in Interest.

 B269220

 (Super. Ct. No. CK62833)

Writ petition to review order setting hearing under Welfare and Institutions Code 

section 366.26. Connie Quinones, Judge. Petition granted in part. 

Law Office of Rachel Ewing and Renelde Espinoza for Petitioner.

No appearance for Respondent.

Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County 

Counsel, William D. Thetford, Principal Deputy County Counsel for Real Party in 

Interest Los Angeles County Department of Children and Family Services. 

_______________________________
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Petitioner Magdalena S. seeks extraordinary relief (Welf. & Inst. Code, § 366.26, 

subd. (l);1 Cal. Rules of Court, rule 8.452) from the juvenile court’s order, made at the 

18-month review hearing (§ 366.22), setting a hearing pursuant to section 366.26 to 

consider termination of parental rights and implementation of permanent plans for her

four dependent children, nine-year-old Ezekiel S., eight-year-old Jessica C., 

seven-year-old J.C., and five-year-old Jayleen C. Magdalena contends (1) substantial 

evidence does not support the juvenile court’s finding that return of the children to her 

care would create a substantial risk of detriment to their well-being, and (2) the juvenile

court erred in holding the 18-month review hearing without verification that the 

Los Angeles County Department of Children and Family Services (Department) 

complied with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 

25 U.S.C. § 1901 et seq.). 

FACTUAL AND PROCEDURAL BACKGROUND

On March 4, 2014 the Department received a referral alleging Magdalena was 

using methamphetamine and neglecting the children. The referral also stated Magdalena 

was selling her food stamps to neighbors and the children were asking the neighbors for 

food. On March 10, 2014 a social worker visited the family home and observed the 

floors covered with trash, the bathroom dirty and the shower stopped up, and the kitchen 

filthy with dishes in the sink and food from the day before on the stove. The refrigerator 

contained only taco shells and milk. Magdalena had failed to pay the rent during the 

previous six months. 

The social worker asked Magdalena to drug test, and Magdalena tested positive 

for amphetamine and methamphetamine. At a Team Decision Making Meeting held on 

April 15, 2014, Magdalena admitted to using drugs in the past, but denied any current use 

and was unable to explain her positive test. She added that she was willing to enter a 

drug treatment facility if it would stop the Department from initiating a dependency case. 

 

1 Statutory references are to this code unless otherwise indicated.
3

Magdalena acknowledged that she was receiving over $600 a month in food stamps, but 

could not explain where the money was going. 

On April 22, 2014 the children were removed from the family home and placed 

together in shelter care. At the time of detention the children were dirty and hungry, and 

the following day they were reported to have head lice. 

On April 25, 2014 the Department filed a section 300 petition alleging 

Magdalena’s illicit drug use rendered her incapable of providing regular care for the 

children and endangered their physical health and safety. 

For the detention hearing, Magdalena submitted a form stating she may have

Indian ancestry, explaining that the children’s maternal grandmother “was [a] registered 

member of the Mission Band of Indians.” At the hearing Magdalena explained that her 

mother and grandmother were deceased, but she might be able to obtain more 

information from an aunt. The court ordered the Department to investigate and address 

its ICWA findings in the report for the jurisdiction hearing. The court ordered the 

children detained in shelter care and set the matter for adjudication on June 4, 2014. 

In its jurisdiction and disposition report, the Department indicated Magdalena had 

a 15-year history of methamphetamine use and had failed to reunify with three older 

children who were made court dependents in 2006. The report stated, “The Indian Child 

Welfare Act does not apply.” The Department recommended the juvenile court sustain 

the petition without reunification services for Magdalena. On June 4, 2014 the court 

continued the jurisdiction hearing to June 11, 2014. At the commencement of the 

continued hearing, Magdalena told the court that she had a maternal cousin who might be 

able to provide information regarding Magdalena’s possible Indian ancestry. The court 

ordered the Department to investigate and continued the hearing to June 19, 2014.

In a Last Minute Information report submitted on June 19, 2014 the Department 

indicated the social worker had repeatedly attempted to contact the maternal cousin, 

without success. Based on this information the court found that ICWA was not 

applicable. The court sustained the petition on Magdalena’s plea of no contest and 

continued the disposition hearing to July 1, 2014. 
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In a Last Minute Information report submitted on July 1, 2014, the Department 

advised that two relatives had provided information regarding Magdalena’s possible 

Indian ancestry, including the names of several family members who were registered 

with an Indian tribe. The Department further reported that it had sent an inquiry to the 

Bureau of Indian Affairs (BIA). The juvenile court vacated its previous finding that 

ICWA was not applicable and ordered the Department to investigate further and give 

ICWA notice to the specific tribes. 

Proceeding to disposition, the court ordered the children removed from 

Magdalena’s care, ordered the Department to provide reunification services for 

Magdalena, and ordered Magdalena to complete a substance abuse program with random 

or on demand drug testing and a parenting program, and to participate in a domestic 

violence support group for victims and in individual counseling to address case issues. 

The court granted Magdalena monitored visitation with the children and set the six-month 

review hearing for January 6, 2015. (§ 366.21, subd. (e).) 

For the six-month review hearing the Department reported that Magdalena was 

residing in a sober living home and was participating in most of her court-ordered 

programs. Her visits with the children were generally satisfactory, and the Department 

had liberalized visitation to four-hour unmonitored day visits with a view to granting 

Magdalena overnight visitation. The Department recommended the children be returned 

to Magdalena’s custody with family maintenance services. The Department’s report 

stated that ICWA did not apply.

At the six-month review hearing on January 6, 2015, counsel for Magdalena 

informed the juvenile court that Magdalena’s sober living home would not allow the 

children to reside with her. Counsel requested that reunification services continue to the 

12-month date to enable Magdalena to obtain housing. The court ordered continued 

reunification services, granted Magdalena overnight and weekend visitation with the 

children, and set the 12-month review hearing for July 7, 2015. (§ 366.21, subd. (f).)

In its report for the 12-month review hearing the Department indicated Magdalena

told the social worker on May 8, 2015 that she was employed as a bakery clerk at a 
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supermarket and was attending her court-ordered programs on her days off. Magdalena 

continued to reside in the sober living home and was not visiting the children regularly. 

When the social worker stressed the importance of visitation in the reunification plan, 

Magdalena stated that she needed to work to earn money to rent an apartment, but she 

would ask for weekends off so she could resume visiting the children. On June 4, 2015, 

through the social worker’s efforts, Magdalena qualified to receive housing assistance of

$900 per month from a homeless assistance program. 

The children’s caregivers

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reported that the children were saddened by 

Magdalena’s failure to visit. The Department recommended the court terminate 

reunification services for Magdalena and set a hearing pursuant to section 366.26. The

Department’s report stated that ICWA did not apply.

At the 12-month review hearing on July 7, 2015 counsel for the Department 

requested that the court terminate reunification services for Magdalena. Counsel for 

Magdalena requested the matter be set for a contest. The court observed Magdalena had 

not obtained housing and thus the children could not be returned to her. Following a 

discussion held off the record, the court ordered further reunification services and set the 

18-month permanency review hearing for October 27, 2015. (§ 366.22.) 

In its report for the 18-month hearing the Department indicated the children’s 

caregivers told the social worker that Magdalena was visiting just once a month, and 

when the children returned from the visits they were hungry and dirty. The caregivers 

further reported that Magdalena was rude and dismissive, and gave the impression she 

did not want to regain custody of the children. But for the lack of visitation, her failure to 

obtain housing and two missed drug tests, Magdalena was in compliance with her case 

plan.

The Department further reported that the social worker had tried on multiple 

occasions to assist Magdalena in obtaining housing, to no avail. The $900 in monthly 

 

2

Jessica was placed with one caregiver and the other three children with another 

caregiver. 
6

housing assistance became unavailable because Magdalena failed to follow up on time. 

The Department later approved Magdalena’s plan to stay with a friend, but the plan also 

failed. The Department approved Magdalena’s plan to stay with the children in her 

brother’s home, but this plan did not succeed because the brother’s landlord did not 

approve her as a renter. Magdalena also failed to follow up on the social worker’s offer 

to assist her in obtaining housing through the Los Angeles County Department of Public 

Social Services. The Department recommended the court terminate reunification services 

and set a hearing pursuant to section 366.26. The Department’s report stated that ICWA 

did not apply.

On October 27, 2015 the juvenile court set the matter for a contest on 

December 17, 2015. In its report for the hearing the Department indicated Magdalena 

was still residing in a sober living facility in Long Beach, had not obtained housing, and

had told the social worker that she might move to Pomona and perhaps later return to 

Long Beach to regain custody of the children. On December 7, 2015 Magdalena told the 

social worker that she had to leave the sober living home that day, and intended to stay in 

a motel. The Department recommended the court terminate reunification services for 

Magdalena and set a hearing pursuant to section 366.26. The Department’s report made 

no reference to ICWA.

At the 18-month hearing on December 17, 2015 the request for a contest was 

withdrawn. The court observed that the only issue in the case was Magdalena’s failure to 

follow through and obtain housing. Upon its finding that return of the children to 

Magdalena’s custody would create a substantial risk of detriment to their well-being, the 

court terminated reunification services for Magdalena and set the matter for a hearing 

pursuant to section 366.26.
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DISCUSSION

1. Substantial Evidence Supports the Juvenile Court’s Finding That Return of the 

Children to Magdalena’s Care Would Create a Substantial Risk of Detriment to 

Their Well-being3

The Legislature has determined that 18 months is generally the maximum time the 

juvenile court may offer family reunification services. (§§ 361.5, subd. (a)(3), 366.22, 

subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)4

At the 18-month review hearing the juvenile court must order a child returned to 

a parent’s custody unless it finds, by a preponderance of the evidence, that return of the 

child will create a substantial risk of detriment to the child’s safety, protection, or 

physical or emotional well-being (§ 366.22, subd. (a)). Absent exceptional 

circumstances, when a child is not returned to a parent at the 18-month review 

hearing the court must terminate reunification services and order a hearing pursuant to 

section 366.26. (§ 366.22, subd. (a).) 

 

3 When we review the juvenile court’s findings under the substantial evidence 

standard, we inquire only whether there is any evidence, contradicted or uncontradicted, 

that supports the court’s determination. We resolve all conflicts in support of the 

determination, indulge in all legitimate inferences to uphold the findings and may not 

substitute our deductions for those of the juvenile court. (In re Katrina C. (1988) 

201 Cal.App.3d 540; In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re I.J. (2013) 56 

Cal.4th 766, 773; Los Angeles County Dept. of Children & Family Services v. Superior

Court (2013) 215 Cal.App.4th 962, 966; In re R.C. (2012) 210 Cal.App.4th 930, 940.)

4 Section 366.22, subdivision (b), authorizes the juvenile court to extend services 

beyond the 18-month statutory limit in certain specific circumstances, none of which

apply in this case. There are also cases in which appellate courts have ruled reunification 

services may continue beyond the 18-month statutory period, but these cases have 

involved truly exceptional circumstances, involving some external factor that thwarted 

the parent’s efforts at reunification. (See, e.g., In re Dino E. (1992) 6 Cal.App.4th 1768, 

1777-1778 [no reunification plan was ever developed by the Department for the father]; 

In re Elizabeth R. (1995) 35 Cal.App.4th 1774 [mother was hospitalized during most of 

the reunification period, and after her release the Department attempted to restrict 

visitation]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209, 1212-1214 [the 

Department’s reunification services for the father were a “disgrace”].) 
8

The record in this case contains substantial evidence to support the juvenile court’s 

finding that return of the children to Magdalena would create a substantial risk of 

detriment to their well-being. In making its determination whether a dependent child 

should be returned to parental custody at the 18-month review hearing the juvenile court 

must consider, among other things, “a parent’s instability in terms of management of a 

home.” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 704-705; see also 

In re John V., supra, 5 Cal.App.4th at p. 1212.) In this case Magdalena could not take 

custody of the children at the six-month review hearing, as the Department had 

recommended, because she was living in a sober living home that would not allow the 

children to reside with her. As of the 12-month review hearing Magdalena remained in 

the sober living home and, despite the social worker’s efforts to assist her, had made no 

progress toward finding suitable housing. After the court again extended reunification 

services at the 12-month review hearing, the social worker hearing continued to make 

efforts to assist Magdalena in obtaining suitable housing, but Magdalena failed to follow 

up on the efforts to assist her, and instead told the social worker she might move to 

Pomona and defer further efforts to regain custody of the children. Finally, as of the date 

of the 18-month review hearing Magdalena had left the sober living home and was 

homeless.

The record thus demonstrates that, despite the Department’s efforts to assist 

Magdalena and the court’s extension of reunification services on two occasions to enable 

Magdalena to obtain suitable housing, Magdalena failed to do so and instead became 

homeless by the time of the 18-month review hearing. As a result, Magdalena did not 

have a place for the children to live with her when the case reached the statutory limit for 

reunification. 
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2. A Limited Reversal Is Required to Permit Compliance With ICWA Notice 

Requirements

Magdalena contends, and the Department concedes, the Department failed to 

fulfill its statutory ICWA notice obligations and the juvenile court erred in conducting 

hearings without verification that the applicable Indian tribes or the BIA received ICWA 

notice.5

Under these circumstances the proper procedure is to grant a limited reversal and 

remand to permit compliance with the ICWA notice requirements, and upon compliance 

to enable the juvenile court to reinstate its orders if no Indian tribe wishes to intervene. 

(See Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 267-268.) 

DISPOSITION

Let a peremptory writ of mandate issue directing the juvenile court to (1) vacate its 

order of December 17, 2015 terminating reunification services for Magdalena and 

scheduling a hearing pursuant to section 366.26, and (2) order the Department to comply 

with the inquiry and notice provisions of section 224 et seq. If, after proper inquiry and 

notice, no response is received from a tribe indicating the children are Indian children, all 

previous findings and orders shall be reinstated. If a tribe determines that the children are 

Indian children, or if other information is presented to the juvenile court that suggests the 

children are Indian children, the juvenile court is ordered to conduct a new review 

hearing (and on request to conduct further proceedings as necessary) in conformity with

 

5 Section 224.2, subdivision (a) provides that when, as here, the Department has 

reason to know that an Indian child is involved in a dependency proceeding, it must send 

notice of the proceeding to all tribes of which the child may be a member or eligible for 

membership. Subdivision (d) of section 224.2 prohibits the juvenile court from holding 

any hearing except for the detention hearing until at least 10 days after receipt of notice 

by the parent, Indian custodian, the tribe, or the BIA. During the pendency of this appeal, 

the Department advised this court that it had commenced the notice process, which has 

not been completed. 
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all provisions of ICWA and California law relating to child custody proceedings 

involving Indian children.

ZELON, J. 

We concur:

PERLUSS, P J.

SEGAL, J.