Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super Ct. No. RIJ105888
APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant N.R.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant R.T.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
McKinster Acting P.J.
N.R. (mother) and R.T. (father), the parents of J.T., appeal an order terminating their parental rights and freeing J.T. for adoption. They contend that the court erroneously denied reunification services to father, that father’s court-appointed attorneys provided ineffective assistance and that the court’s failure to inquire into possible Indian ancestry of the child requires reversal under the Indian Child Welfare Act (ICWA; 25 U.S.C. §§ 1901-1963).
FACTUAL AND PROCEDURAL BACKGROUND
J.T., who was born in November 2000, was the subject of a prior dependency proceeding which began in 2003. In that case, J.T. was with father when father was arrested for possession of methamphetamine for sale, transportation of methamphetamine and possession of a hypodermic needle, as well as for allowing two-year-old J.T. to ride in his car without a child car seat. When mother was contacted, she admitted that both parents had a drug problem and that there had been domestic violence between the parents in the child’s presence.
The petition was sustained on findings that J.T. came within Welfare and Institutions Code section 300, subdivision (b). Reunification services were ordered for both parents. Mother was ordered to participate in a domestic violence program, general counseling, parenting education, substance abuse testing and an in-patient substance abuse program. Father was ordered to participate in an anger management class, parenting education, substance abuse testing and an in-patient substance abuse program.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
After the petition was sustained, father was sentenced to 13 months in prison for child endangerment, possession of methamphetamine for sale, transportation of methamphetamine and possession of a hypodermic needle. Although he apparently attended Narcotics Anonymous meetings while in prison, he did not comply with his case plan, and services were terminated as to him at the six-month review hearing. Mother initially failed to comply, continuing to use drugs “on a regular basis” and living a “transient lifestyle.” She initially failed to show “the motivation or interest in reunifying” with her child. By the time of the six-month review hearing, however, she had entered a residential program and displayed eagerness to attend all of her programs. Services were continued for her, and the petition was ultimately dismissed with J.T. being returned to his mother’s custody. Father’s reunification services were terminated in that case on May 24, 2004.
In May 2007, another referral was made for J.T., alleging general neglect. The reporting party stated that mother was under the influence of alcohol or drugs when she came to J.T.’s school to pick him up. Subsequent contacts between mother, the maternal grandmother, J.T. and the social worker indicated that mother was not providing a stable home for J.T. and that his school attendance was poor. Mother was attending a drug program, but was apparently using heroin. On or about June 26, 2007, mother was arrested for burglary and grand theft and was incarcerated. J.T. was placed in a foster home. Father was in prison again on drug charges. A new petition was filed on June 28, 2007.
The court found the allegations of the petition true as amended and found that ICWA does not apply. It ordered reunification services for mother, who was by then out of custody. It denied services for father, based on an allegation that he had previously failed to reunify with J.T.
Father was represented by counsel at all hearings but waived his presence at the jurisdiction/disposition hearing and all subsequent hearings. He did not object to the denial of reunification services. Mother did not comply with her case plan, and the Department of Public Social Services (the department) recommended termination of parental rights. J.T.’s foster mother wanted to adopt him and he wanted to be adopted.
At the selection and implementation hearing, father, who had been released from prison, stated, through his attorney, that he was attempting to enter a program “to get his life turned around.” He hoped to reunify with his son, and asked for a permanent plan of guardianship rather than adoption. Mother admitted that she had rarely visited with J.T., but felt that she had a significant relationship with him. She also requested guardianship rather than adoption.
The court terminated parental rights and ordered the department to proceed with adoption.
The parents filed timely notices of appeal.
LEGAL ANALYSIS
THE ORDER DENYING REUNIFICATION TO FATHER CANNOT BE REVIEWED IN THIS APPEAL
Father contends that the court erroneously denied him reunification services when it applied section 361.5, subdivision (b)(10). Section 361.5 provides that reunification services need not be provided to a parent under specified circumstances. Subdivision (b)(10) provides that services need not be provided if the parent failed in a previous dependency to reunite with a sibling or half sibling of the child who is the subject of the current petition. He correctly points out that although he failed to reunify with J.T. in the previous dependency, he never failed to reunify with any sibling or half sibling of J.T.
Disposition orders are appealable. (§ 395, subd. (a)(1); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 259.) However, a notice of appeal must be filed within 60 days of the date of the ruling (Cal. Rules of Court, rule 8.400(d)), and a parent generally may not attack the validity of a prior appealable order after the time for filing an appeal from that order has passed. (Dwayne P., at p. 259.) Here, the disposition order denying services was made on August 27, 2007. Father did not appeal that order, and the time to do so has passed. He argues, however, that because the statute the court relied on to deny him services was unquestionably inapplicable, his court-appointed attorney rendered ineffective assistance by failing to object to the denial of services on that basis and by failing to file a notice of appeal from the disposition order.
As we discuss below, section 361.5, subdivision (b)(10) (hereafter subdivision (b)(10)) does not apply to father and reunification could not be denied on that basis. Nevertheless, we cannot address his claim of ineffective assistance of counsel (IAC) on direct appeal.
In some circumstances, an unappealed jurisdiction or disposition order may be attacked on appeal from a subsequent appealable order by means of a claim of IAC. (In re S.D. (2002) 99 Cal.App.4th 1068, 1079.) However, IAC can be raised on direct appeal only “in the rare case where the appellate record demonstrates [that] ‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction.” (Id. at p. 1077, quoting People v. Pope (1979) 23 Cal.3d 412, 426.) Otherwise, we must affirm the judgment on direct appeal, leaving the issue to be raised by means of a petition for writ of habeas corpus. (In re S.D., at p. 1077.)
Where the record is silent, a court cannot, in most instances, determine that there simply could not be any satisfactory explanation. (See, e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [where facts essential to determination of issue were not litigated, reviewing court can’t determine whether counsel was ineffective for failing to bring motion to suppress].) That is true in this case. Here, father neither made any effort toward reunification nor communicated any interest in reunification in the current dependency until the termination hearing. He waived his right to attend all hearings. In the prior dependency, although father told the social worker that he wanted to reunify with J.T. and was told that failure to accomplish reunification within six months might result in loss of his parental rights, father made no effort to complete his case plan. Father’s conduct during both dependencies supports the inference that counsel did not contest the disposition orders because father told him he was not interested in reunification and instructed him not to contest jurisdiction or the denial of reunification services. We recognize that this may not be what happened. However, because the possibility clearly exists, we cannot assume that trial counsel would otherwise have objected on father’s behalf but failed to notice that subdivision (b)(10) did not apply.
Counsel may also have informed father that he was not entitled to reunification services in any event, unless he requested custody. (See R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1269-1271.) Section 361.2 provides that if there is a parent “with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, ” the court must place the child with that parent if the parent requests custody, “unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) If the noncustodial parent does not request custody, the court need not offer reunification services. If, on the other hand, the noncustodial parent does request custody, the court may order the child placed with that parent subject to conditions the court deems appropriate, including the parent’s completion of a reunification plan. (§ 361.2, subd. (b)(3).) An incarcerated parent may be granted custody if he or she can make appropriate arrangements for the child pending the parent’s release. (See In re Isayah C., supra, 118 Cal.App.4th at pp. 695-699.)
Section 361.2 does not use the term “noncustodial.” Rather, it refers to a parent with whom the child was not residing at the time of the events leading to the filing of the petition. (§ 361.2, subd. (a).) We recognize that a parent with whom the child does not reside may have joint legal custody. (See In re Isayah C. (2004) 118 Cal.App.4th 684, 699.) However, we use the term “noncustodial” in this discussion for convenience to refer to a parent who falls within the provisions of section 361.2, subdivision (a).
We cannot assume that father’s attorney did not discuss with him the requirements of section 361.2. Nor can we assess the possibility that father could have made appropriate arrangements for J.T. pending his release, if he did wish to seek custody. Those are questions which must be raised, if at all, by means of a habeas corpus petition.
The department contends that we can dispose of father’s IAC claim by interpreting subdivision (b)(10) to include failure to reunify with the child who is the subject of the dependency, despite the unambiguous words of the statute, which limit the application of subdivision (b)(10) to failure to reunify with a sibling or half sibling of the child. It contends that this interpretation would be consistent with the overall purpose of the statutory scheme and would effectuate the purpose of the law. We reject this contention.
“In interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law.” (People v. Loeun (1997) 17 Cal.4th 1, 9.) Where statutory language is unambiguous, “‘we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ [Citations.]” (People v. Toney (2004) 32 Cal.4th 228, 232.) The language of subdivision (b)(10) is unambiguous in its directive that reunification services can be denied to a parent who has previously failed to reunify with a sibling or half sibling of the child who is the subject of the current petition. Even if we agreed that failure to reunify with the same child should also be a ground for denial of reunification services, we cannot “interpret” unambiguous language to mean something other than what it clearly means simply because we believe that doing so would produce a better result. (People v. Louen, supra, at p. 9.) An exception to this “plain meaning” rule is that a court can determine that the literal meaning of the statute is so inconsistent with its purpose or with the statutory scheme of which it is a part that it would “‘frustrate[] the manifest purposes of the legislation as a whole or [lead] to absurd results.’ [Citations.]” (California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.)Here, we cannot conclude that the literal language of subdivision (b)(10) either frustrates the manifest purpose of the dependency scheme as a whole or necessarily leads to absurd results. Accordingly, we must leave it to the Legislature to amend subdivision (b)(10) if it determines that the statute as currently written fails to effectuate the purposes of the statutory scheme.
In In re Renee J. (2001) 26 Cal.4th 735, the California Supreme Court found section 361.5, subdivision (b)(10) ambiguous in a manner unrelated to the issue the department raises. The Legislature promptly amended subdivision (b)(10) to remove the ambiguity. (See In re Harmony B. (2005) 125 Cal.App.4th 831, 841-842 [Fourth Dist., Div. Two].)
The department also contends that we can reject father’s claim of IAC because he has failed to meet his burden of demonstrating prejudice, in that he has not shown that he was interested in reunification services. A parent is prejudiced for purposes of IAC if there is a reasonable probability that the outcome would have been more favorable but for the attorney’s error or omission. (Strickland v. Washington (1984) 466 U.S. 668, 694.) The fact that father did not request reunification services does not, in this case, address that question. The question is whether there is a reasonable probability that he would have been granted custody pursuant to section 361.2, subdivision (a) if he had requested it. That question, too, must be addressed by means of a habeas corpus proceeding.
Father filed a petition for writ of habeas corpus (In re. R.T. on Habeas Corpus, E050233), which we ordered considered with this appeal. We will resolve that petition by separate order.
The minor contends that because father is a noncustodial parent who did not request custody, we can find that the court properly denied reunification, even if it did not base its ruling on section 361.2. The minor also argues that we can uphold the order because, based on the record, the court would have been justified in denying services to father pursuant to section 361.5, subdivision (e)(1). Because we are not reaching the merits of father’s contention, however, we need not address alternate grounds on which we might otherwise have upheld the court’s ruling.
Because we are not reaching the merits of father’s contention, we deny the minor’s request for judicial notice of a minute order showing the length of father’s prison sentence as of the date of the disposition order.
THERE WAS NO ICWA INQUIRY OR NOTICE ERROR
The parents contend that the order terminating parental rights must be reversed because the court failed to inquire sufficiently to determine whether J.T. is or may be an Indian child within the meaning of ICWA and instead relied upon the findings in the prior dependency that ICWA did not apply. We disagree.
Section 224.3, subdivision (a), and California Rules of Court, rule 5.481(a) impose upon both the juvenile court and the department “an affirmative and continuing duty to inquire” whether a dependent child is or may be an Indian child. A party seeking foster care or termination of parental rights must ask the child, if the child is old enough, and the parents if the child has Indian heritage (Cal. Rules of Court, rule 5.481(a)(1)), and upon a parent’s first appearance in a dependency proceeding, the juvenile court must order the parent to complete a Parental Notification of Indian Status form (Cal. Rules of Court, rule 5.481(a)(2)). In the absence of information from the child or the parent, if the social worker (or another specified individual) otherwise “knows or has reason to know that an Indian child is or may be involved, ” further inquiry must be made. (Cal. Rules of Court, rule 5.481(a)(4), (a)(5).)
Former rule 5.664 of the California Rules of Court, which was in effect at the time of the detention and jurisdiction/disposition hearings in this case, contained the same provisions. (See In re N.E. (2008) 160 Cal.App.4th 766, 769 & fn. 2.)
For purposes of ICWA, an Indian child is an unmarried person under the age of 18 who is a member of an Indian tribe or is the biological child of a member of a tribe and is eligible for membership in a tribe. (25 U.S.C. § 1903(4).) In the prior dependency, both parents were asked if they or any member of their families belonged to any Indian tribes. Both replied, “No.” At the time J.T. was detained in the prior case, the family was living on the Morongo Reservation. However, a neighbor informed the social worker that neither parent was an Indian. He reported that father’s family had been permitted to live on the reservation for many years despite their lack of Indian heritage.
In the current case, mother told the social worker that her family “is not Native American and she is not registered with a Tribe.” Father was incarcerated at the time, and the social worker was unable to interview him. At the detention hearing, at which both parents were represented by counsel, the court ordered the parents to file Parental Notification of Indian Status forms. It does not appear that the forms were filed. Nevertheless, at the jurisdiction/disposition hearing, the court found that ICWA did not apply.
At the hearing on termination of parental rights, the court inquired if there were any ICWA concerns. Counsel for the department informed the court that no ICWA-020 form was ever filed by father. He noted that father had never appeared at any of the hearings, and that there was no information from the father. However, he stated that “from all the information we have... ICWA did not apply.” The court then stated, “All right. I have no reason to dispute the prior findings that have been made under ICWA today [sic].”
Rule 5.481 designates the Parental Notification of Indian Status form as “ICWA-020.” (Cal. Rules of Court, rule 5.481(a)(2).) Under the prior rule, the form was JV-130.
Father contends that it was error for the court to accept the prior findings without input from him. He contends that he never appeared at any hearing and states that he never received the Parental Notification of Indian Status form. He contends that the department never contacted him to inquire about Indian ancestry. Consequently, he contends, the trial court’s finding that ICWA does not apply is not supported by substantial evidence.
Contrary to father’s argument, he did appear at each hearing, through his attorney. At the detention hearing, he was ordered to submit the JV-130 form. The record does not disclose why he did not do so. His attorney never informed the court that father had Indian ancestry, nor did he object to the court’s reliance on the findings in the prior proceeding to determine that ICWA does not apply.
Father provides no persuasive argument or authority that the court could not rely on the findings in the prior dependency. He relies on In re Robert A. (2007) 147 Cal.App.4th 982. In that case, although the social service agency was on notice from the beginning of the proceeding that the father had Cherokee heritage, it failed to give notice to the tribe when the child was removed from the father’s custody. On appeal, the agency conceded that notice should have been given, but argued that the error was harmless because ICWA notice had been given in a dependency proceeding in a different court (within the same county) involving another of the father’s children, Robert’s half sibling. The agency sought to augment the record in Robert’s case with the ICWA notices sent in the half sibling’s case. The Court of Appeal declined to consider the notices for a number of reasons: because the notices in the half sibling’s case had not been mailed until after the notice of appeal had been filed in Robert’s case and were therefore not before the juvenile court when it removed Robert from the father’s custody, because the agency did not provide any record showing that the court in the half sibling’s case had determined that the notices complied with ICWA, and because “ICWA notices in separate dependency cases are not fungible evidence-even when the separate cases involve half siblings who share the same parent with Indian heritage.” (In re Robert A., at pp. 989-990.) It held that the agency had a duty to provide the juvenile court with the ICWA notices and any responses received before the court removed the child from the father’s custody, in order to allow the court to determine the legal sufficiency of the notices before it decided the ultimate issue, i.e., whether ICWA applied. (Ibid.)
This case is distinguishable. Here, the department inquired of both parents in the prior case involving the same child, and both parents responded that they had no family members who belong to any Indian tribe. The court in that case determined that ICWA does not apply. Because the court had previously determined that ICWA does not apply, a duty to make further inquiry would be triggered only if the court or the department had new information that J.T. “is or may be” an Indian child. (Cal. Rules of Court, rule 5.481(a)(4).) In the current case, mother confirmed that she had no Indian ancestry. Father was given the opportunity to inform the court that, contrary to his prior statement, he does have Indian ancestry, if that were the case. He did not do so. In the absence of any indication from either parent that he or she had newly discovered information that the child did indeed have Indian ancestry, no further inquiry was required.
In any event, even if we assumed that the court and the department failed to make sufficient inquiry, the error would not require reversal. In In re Rebecca R. (2006) 143 Cal.App.4th 1426 (Fourth Dist., Div. Two), this court held that a conditional reversal and limited remand for ICWA inquiry error is not necessary unless the parent represents that if he had been asked, he would have reported that the child had Indian ancestry. In the absence of such a representation, there has been no miscarriage of justice. (Id. at pp. 1430-1431; accord, In re N.E., supra, 160 Cal.App.4th at p. 770.) Here, although the department discussed In re Rebecca R. in its brief, father makes no such representation, even in his reply brief. Accordingly, no remand is necessary on the basis of father’s showing on appeal.
Mother asks us to consider her declaration under penalty of perjury that “My mother, the great, great, great maternal grandmother of the minor [sic], Minniebell Burchet... married Edward Lightfoot who I understand was American Indian and who fathered my ancestors. I have relatives who reside in Minneapolis, Minnesota who I believe may have further information about the Native American ancestry of the family.” This offer of proof is also insufficient to require remand. In order to demonstrate a miscarriage of justice and bring about a conditional reversal and limited remand, the parent must be able to state that “if [she] had been asked, [she] would have indicated that the child did (or may) have such ancestry.” (In re Rebecca R., supra, 143 Cal.App.4that p. 1431.) Here, mother was asked about possible Indian ancestry, in both the current and prior cases, and denied it. Consequently, if she later discovered that family lore indicates Indian ancestry, or if she had previously known it but had chosen not to disclose it, it was up to her to disclose that information to the court or to the department in order to trigger a duty either to make further inquiry or to give notice. Such information was exclusively within her knowledge, and its disclosure was wholly within her control. (See ibid.)
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Miller J.
Section 300, subdivision (b) provides, in pertinent part:
“The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse....”