Opinion
B314188
03-30-2022
In re Ar.C. et al., Persons Coming Under the Juvenile Court Law. v. S.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles No. 18CCJP06918B, C, D. Brett Bianco, Judge. Dismissed, in part, and conditionally reversed and remanded with instructions.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Tarkian & Associates, Arezoo Pichvai, for Plaintiff and Respondent.
KIM, J.
I. INTRODUCTION
S.C. (mother) appeals from the juvenile court's order terminating her parental rights to her daughter, Ar.C. (the child), contending the court erred when it found that the parental-benefit exception to the termination of parental rights in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply; and (2) the Los Angeles County Department of Children and Family Services (the Department) failed to perform its duty of inquiry under the federal Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.). We dismiss mother's appeal, in part, and conditionally reverse and remand, in part, with directions to comply with ICWA.
As explained below, mother also purports to appeal from the juvenile court's order denying her motion for sanctions.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
II. BACKGROUND
A. Section 300 Petition
Prior to the child's birth, mother's two older children became dependents of the juvenile court and she failed to reunify with them. In August 2019, on the same date that mother gave birth to the child, the Department received a referral of allegations of neglect.
On September 19, 2019, the Department filed a petition on behalf of the then one-month old child based, in part, on mother's substance abuse and father's (E.C.) mental health issues. On November 18, 2019, mother pleaded no contest to allegations that the child's siblings had been neglected and that mother's substance abuse and father's mental and emotional problems placed the child at risk of serious physical harm. As to disposition, the court removed the child from father's custody and placed her with mother.
Nine days later, mother left the child in the care of unrelated adults who failed to place the child in safety restraints in a car that was subsequently involved in a collision. The child's clothing was soiled and there was mold on her bottle. The car smelled of marijuana and police found both marijuana and a methamphetamine pipe inside. The juvenile court issued an order authorizing the child's removal from mother's custody, and she was then placed with the same foster family with whom the child's older brother J.C. was residing.
On December 3, 2019, the Department filed a petition, pursuant to section 342, alleging that mother's conduct placed the child at risk of serious harm. On December 4, 2019, the court ordered that the child be detained.
On January 14, 2020, the juvenile court conducted a hearing on the section 342 petition and sustained it. The court ordered the child removed from the custody of both parents. It granted mother reunification services, ordered her to comply with her case plan, and granted her three monitored visits per week.
B. Proceedings Regarding Half Sibling Au.C.
In November 2020, mother gave birth to the child's half-sibling, Au.C., whose father, R.C., was the brother of the child's father. On November 23, 2020, the Department filed a section 300 petition on behalf of Au.C., alleging that mother's domestic violence with father, her ongoing substance abuse, and her negligent care of the child also endangered her newborn, Au.C. On January 26, 2021, the juvenile court sustained the petition, as amended, and granted the parents reunification services. On August 17, 2021, the court terminated R.C.'s reunification services and set a hearing pursuant to section 366.26.
C. Section 366.26 and Sanctions Hearing
Following the child's initial detention in November 2019, the Department reported that mother participated in some monitored visits. Mother's attendance at these visits was inconsistent.
Then, in March 2020, due to the COVID-19 pandemic, in-person visits were suspended and mother instead visited with the child virtually. Mother's participation in the virtual visits was inconsistent and she missed approximately half of them. During the visits that she did attend, mother ignored foster mother's suggestions to read to, play with, and talk to the child.
Health care providers diagnosed the child with numerous medical problems, including allergies, seizures, vision and hearing problems, and suspected Fetal Alcohol Spectrum disorders. The child also had undergone surgery to her head. Mother, however, rarely asked foster mother how the child was doing with her medical issues. Although mother had previously accompanied foster mother to the child's medical appointments, mother did not believe that there was any problem with the child and stopped attending appointments altogether.
On March 8, 2021, the Department filed a status review report, explaining that the child, her older sibling J.C., and her younger sibling, Au.C. were now all placed in the same foster home. Mother visited with all three children at the same time. The foster parents reported that they wanted to adopt the child.
As to the child, on March 29, 2021, the juvenile court found that mother had failed to comply with her case plan, terminated her reunification services, and set the matter for a permanency planning hearing.
On June 23, 2021, in-person monitored visits resumed. By July 8, 2021, mother had attended one in-person visit and cancelled one visit. The child did not recognize mother and did not appear to have any bond with her. Further, the child did not engage with mother in the same way that she engaged with her foster mother. Instead, the child engaged "with . . . mother through play as she [did with] her service providers" and, according to foster mother, may have viewed mother "as another service provider who [came] to interact with her." And, mother did not want to feed or change the child's diaper, claiming she was "'not good at that.'"
On July 16, 2021, mother filed a motion for sanctions against the Department (sanctions motion) for violating court orders by, among other things, failing to comply with visitation orders for the child and Au.C. Specifically, mother complained that she was required to test weekly for COVID-19, despite being vaccinated against it.
On July 23, 2021, the Department submitted a last minute information report for Au.C., explaining that Au.C. had "many complicated medical issues," including a breathing problem that required oxygen treatment. The Department also explained that mother was often sick, was "constantly . . . going to the hospital," and missed virtual meetings. According to the Department, a social worker asked mother to take a COVID-19 test prior to each in-person visit because of Au.C.'s medical problems.
On July 26, 2021, the juvenile court conducted a hearing pursuant to section 366.26 as to the child. Mother's counsel objected to the termination of her parental rights on the grounds that she had a "strong bond" with the child.
The juvenile court found by clear and convincing evidence that the child was adoptable. It further concluded that the parental-benefit exception did not apply, that "any benefit accruing from the child['s] . . . relationship with the parents [was] outweighed by the permanency and stability that the child would receive through adoption[, ] and that adoption [was in] the best interest of the child." The court therefore terminated the parental rights of mother and father.
The juvenile court next conducted a hearing on mother's sanctions motion and denied it. It concluded that the Department's restrictions on visits, including its requirement that mother test weekly for COVID-19, were appropriate given the "child's condition." The court continued, "[T]he court's decision [at] the [section 366.26] hearing was not motivated in any way by mother's lack of visitation. That [was] just one small factor in a much bigger picture. Mother has not done anything that she needed to do in order to address the concerns that previously got us here or to in any way establish that it would be . . . in the [child's] best interest to do anything other than what we did at the [section 366.26] hearing completely irrespective of the visitation issue."
The court did not specify whether it was referring to the child or Au.C. Both children were medically fragile.
D. ICWA Proceedings
At the hospital, after giving birth to the child, mother reported to a social worker that the child's great grandfather, Ralph A., was "of the Navaho tribe." She also stated that she did "not have any documentation for enrollment for her family" and that in her prior dependency case with the child's older brother J.C., "they were not able to establish proof of enrollment and ICWA did not apply."
At her September 20, 2019, arraignment hearing in the child's case, mother submitted an ICWA-020 form, stating that she had no Indian ancestry. The court found that it had no reason to believe that the child was an Indian child and therefore did not order notice to any tribe or the Bureau of Indian Affairs.
On October 30, 2019, at father's arraignment hearing in the child's case, he submitted an ICWA-020 form indicating that he had no Indian ancestry. The juvenile court found that it had no reason to believe that the child was an Indian child.
On November 30, 2020, Au.C.'s father, R.C., submitted in Au.C.'s case an ICWA-020 form that stated he may have Indian ancestry through the Cherokee tribe. At the detention hearing conducted that same date, R.C. informed the juvenile court that Au.C.'s paternal grandmother and paternal great-grandmother had Cherokee ancestry. The court ordered the Department to investigate Au.C.'s Indian ancestry through her father R.C. The court concluded, however, that at that time, it had no reason to know that ICWA applied to Au.C.'s case.
On November 29, 2021, after the juvenile court terminated R.C.'s reunification services and set a hearing pursuant to section 366.26, he filed a petition for extraordinary writ, contending that the court and the Department failed to comply with its duty of inquiry under ICWA.
On December 10, 2021, Division One of this appellate district issued a notice of its intention to grant a peremptory writ ordering the juvenile court "(i) to direct the [Department] to complete, within 10 court days, pursuant to . . . section 224.2 and consistent with In re Josiah T. (2021) 71 Cal.App.5th 388, its investigation into [R.C.'s] claim of Native American/Indian ancestry and report the results of its investigation to the court . . . . and thereafter (ii) to make a determination, within 5 calendar days of receipt of the report, whether there is reason to know, pursuant to . . . section 224.2, subdivision (d) that an Indian child is involved in this case, requiring notice pursuant to . . . section 224.3."
On December 14, 2021, the juvenile court ordered that the Department "interview [R.C.] thoroughly [regarding] ICWA and contact relatives he identifie[d]." The Department was ordered to submit a report regarding ICWA compliance on December 28, 2021, and the court set a hearing regarding ICWA compliance on January 3, 2022, "per directions from [the C]ourt of [A]ppeal."
On December 17, 2021, Division One dismissed R.C.'s writ petition as moot.
E. Appeals
On July 27, 2021, mother timely filed two notices of appeal. The first notice referenced the case involving the child (LASC case no. 18CCJP06918B) and specified an appeal from the juvenile court's July 26, 2021, orders (1) terminating mother's parental rights to the child; and (2) denying the sanctions motion. The second notice referenced the subsequently-filed case involving Au.C. (LASC case no. 18CCJP06918C) and specified an appeal from the order denying the sanctions motion only.
In her opening brief, mother does not raise any argument as to how the juvenile court erred in denying the sanctions motion.
III. DISCUSSION
A. Sanctions Order
Mother purports to appeal from the juvenile court's denial of her sanctions motion as to the child. That order, however, appears to be nonappealable. (Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055; but see Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 898-905.) Even if the order were appealable, mother did not raise any issue concerning the sanctions ruling in her opening brief, thereby waiving or abandoning any such challenge on appeal. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1442; Tan v. California Federal Savings & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) We therefore dismiss this portion of mother's appeal.
B. Parental-Benefit Exception
We next consider mother's contention that the juvenile court erred in the child's case by finding that the parental-benefit exception did not apply. "[W]hen a court proceeds to select a permanent placement for a child who cannot be returned to a parent's care, the parent may avoid termination of parental rights in certain circumstances defined by statute. One of these is the parental-benefit exception. . . . [I]t requires a parent to establish, by a preponderance of the evidence, . . . that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. (See . . . § 366.26, subd. (c)(1)(B)(i); Evid. Code § 115.) . . . [T]he exception applies in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (In re Caden C. (2017) 11 Cal.5th 614, 629-630 (Caden C.), italics added.)
Mother contends that the juvenile court erred when it failed to "make any findings as to the consistency and quality of [mother's] visitation." She does not, however, cite to any authority in support of her apparent contention that the court was required to make any specific findings relative to its conclusion that the parental benefit exception did not apply, and we are aware of none. (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.) Even if the court were required to make specific findings regarding the frequency and quality of mother's visitation with the child, it did so here. Indeed, the minute order for the section 366.26 hearing states that mother had "not maintained regular visitation with the child and ha[d] not established a bond with the child."
Next, and contrary to mother's characterization of the juvenile court's findings, the court did not reject the parental-benefit exception based solely on "mother's ongoing struggles with case issues." Instead, at the section 366.26 hearing, the court expressly found that any benefit to the child from a continuing relationship with mother was outweighed by the benefits of adoption and therefore that no exception applied. There was substantial evidence to support that finding as the child had been detained from mother in November 2019, within months of her birth, and had been under the care of the prospective adoptive parents ever since. Further, mother's visitation was inconsistent, and when she did visit, she did not engage with the child, did not feed or change her, and did not attend her medical appointments because she did not believe the child suffered from serious medical conditions for which she was being treated. Moreover, at the time of the termination of parental rights hearing, the child did not know or recognize her mother and did not appear to have a bond with her. It was therefore well within the court's discretion to conclude that mother had failed to demonstrate that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
We accordingly construe the juvenile court's comment at the sanctions hearing as a clarification that, regardless of whether mother's inconsistent visitation was caused, in whole or in part, by the Department, the court's rejection of the parental-benefit exception was not based primarily on that inconsistency. Given the court's presumed awareness of Caden C., supra, 11 Cal.5th 614, we cannot construe the comment, as mother suggests, to mean that the court's rejection of the exception was based solely on mother's ongoing issues with substance abuse and failure to reunify. (People v. Jones (2017) 3 Cal.5th 583, 616 ["'In the absence of evidence to the contrary, we presume that the court "knows and applies the correct statutory and case law"'"].)
C. ICWA Compliance
Finally, we consider mother's contention that the Department: (1) failed to further investigate mother's initial report of Navajo ancestry; and (2) failed to inquire of father's extended family members, including his brother R.C., concerning father's possible Indian ancestry.
Mother suggests that the juvenile court's January 2021 finding in Au.C.'s case that ICWA did not apply can be reviewed in mother's appeal from the court's July 26, 2021, order denying the sanctions motion as to Au.C. Mother, however, does not cite any authority for the proposition that the court made an implied finding concerning ICWA at the sanctions hearing in Au.C.'s case from which she can appeal, and we have found none. We therefore decline to consider mother's argument.
Pursuant to ICWA, "[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking . . . termination of parental rights to[ ] an Indian child shall notify the parent or Indian custodian and the Indian child's tribe" of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.).)
"'As the Supreme Court recently explained, notice to Indian tribes is central to effectuating ICWA's purpose, enabling a tribe to determine whether the child involved in a dependency proceeding is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the matter. (Isaiah W., supra, 1 Cal.5th at pp. 8[-]9.)' [Citation.]
"'ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); see § 224.1, subd. (a).) The trial court and [Department] have an affirmative and continuing duty in every dependency proceeding to determine whether ICWA applies. (§ 224.2, subd. (a); Cal. Rules of Court, rule 5.481(a);[fn. omitted.] Isaiah W., supra, 1 Cal.5th at pp. 10-11.) In cases "where the court knows or has reason to know that an Indian child is involved," ICWA requires the [Department], or other party seeking adoption or foster care placement, to notify "the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a); see Isaiah W., supra, [1 Cal.5th] at p. 5.)
"'Following changes to the federal regulations concerning ICWA compliance, California made conforming amendments to its statutory scheme regarding ICWA, effective in 2019. (In re D.S. (2020) 46 Cal.App.5th 1041, 1048 . . . (D.S.).) In D.S., the court explained that the resulting clarification of law, found in part in section 224.2, "creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department]'s initial contact with a minor and his family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. [Citations.]" (D.S., supra, [46 Cal.App.5th] at p. 1052.)
"'At the first step, "[s]ection 224.2, subdivision (b) specifies that once a child is placed into the temporary custody of a county welfare department, such as the [Department], the duty to inquire 'includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child.'" [Citation.]' [Citation.]
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 . . . .)" (In re H.V. (2022) 75 Cal.App.5th 433, 437-438.)
The Department concedes, and we agree, that mother's initial report, on August 23, 2019, of Navajo ancestry should have triggered a further investigation and report by the Department.Yet the Department never asked mother or extended family members about the details of her report of Navajo ancestry. We therefore conditionally reverse the order terminating mother's parental rights to the child and remand with directions to the juvenile court to order the Department to further investigate mother's claim of Navajo ancestry and to report the results of that investigation to the court. If, following that report, the court has reason to know that the child is an Indian child, it shall proceed according to the notice requirements under ICWA. If the report does not provide a basis for the court to conclude the child is an Indian child, the court shall reinstate its order terminating mother's parental rights.
The Department investigated mother's report of Cherokee ancestry in a prior case involving the child's older sibling, O.L., based on great grandfather Ralph A., and sent out notices to certain Cherokee tribes, following which we ordered the juvenile court to direct the Department to send out amended notices. (In re O.L. (Oct. 19, 2019, B296732) [nonpub. opn.].)
Mother additionally contends that R.C.'s November 2020 report in Au.C.'s case of Cherokee ancestry demonstrates that the Department violated its duty of initial inquiry in the child's case by failing to question father's extended family members, including his brother R.C., about father's Indian ancestry. The Department agrees that a remand is appropriate for further inquiry of father's Indian ancestry. In our view, any such relief has been mooted by the subsequent writ proceedings initiated by R.C., which resulted in a further investigation of any Cherokee ancestry in father's family. The results of that inquiry will be part of the record in these proceedings on remand. We therefore decline to re-order any such subsequent inquiry, but will order the juvenile court and Department to consider the subsequent investigation of father's Indian heritage on remand.
IV. DISPOSITION
The appeals from the denial of the sanctions motion are dismissed. The order terminating mother's parental rights to the child is conditionally reversed for the limited purpose of ensuring compliance with the further inquiry requirements of ICWA as follows:
1. The Department shall conduct an inquiry investigation into the child's Indian ancestry, including making diligent efforts to interview the child's extended family members as defined by section 224.1, subdivision (c) and 25 U.S.C. section 1903(2) including at least mother and any maternal relatives for the purpose of obtaining information required for ICWA notice compliance.
2. If from that initial inquiry, the Department has a reason to believe the child is an Indian child, then, as soon as practicable, it shall make further inquiry regarding the child's possible Indian status.
3. If from that further inquiry, or the prior inquiry of paternal Indian heritage in Au.C.'s case, the Department has a reason know the child is an Indian child, then it shall comply with the formal notice requirements in section 224.3.
4. The Department shall document its investigation, including its interviews with family members and attempts to conduct such interviews, its contact with tribes, if any, and any information obtained from the tribes, and provide that documentation to the juvenile court.
5. The juvenile court shall conduct a noticed hearing to review the adequacy of the Department's investigation. If the court determines that there is no reason to know the child is an Indian child, as that term is defined under ICWA, then the order terminating mother's parental rights to the child and freeing her for adoption shall be reinstated.
6. If the court determines the Department's investigation was adequate and there is a reason to know the child is an Indian child, as that term is defined under ICWA, then the order terminating parental rights is unconditionally reversed and the Department shall provide adequate ICWA notice to the tribe or tribes, mother, father, and the regional Bureau of Indian Affairs and shall proceed thereafter in compliance with ICWA and related California statutes.
We concur: RUBIN, P. J., MOOR, J.