Opinion
A152796
07-12-2018
In re D.L., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-JVSQ-16-17456)
J.D. (Mother) appeals from a juvenile court order terminating her parental rights to her daughter, D.L. Mother contends the juvenile court abused its discretion when it failed to independently determine whether D.L. should be placed with the maternal grandmother. We conclude Mother lacks standing to challenge the order terminating parental rights on the grounds of relative placement. We conditionally reverse, however, so the Department can comply with the technical notice deficiencies Mother raises under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA).
I. FACTUAL AND PROCEDURAL BACKGROUND
Because Mother does not challenge the decision to terminate her parental rights, our summary of the proceedings below is limited to matters affecting her standing. In January 2016, 11-month-old D.L. came to the attention of the Mendocino County Health and Human Services Agency (Department) after Mother was hospitalized following a suicide attempt. An investigation revealed that Mother appeared mentally fragile and needed prompting to address some of the minor's needs.
After Mother failed to comply with a safety plan, the Department in April 2016 filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b)(1) (failure to protect) and (c) (serious emotional damage). The juvenile court ordered the minor detained, and she was placed in a foster home.
All further statutory references are to the Welfare and Institutions Code.
An amended petition was filed to add an allegation under section 300, subdivision (j) (abuse of sibling) that D.L.'s father had failed to reunify with an older sibling after being offered reunification services. The juvenile court bypassed services for him, and later terminated his parental rights. He is not a party to this appeal.
Both maternal grandparents, who live in Illinois, filed relative information forms with the juvenile court in May 2016. They checked boxes on the forms indicating they wished to talk to the judge at the next hearing, and they would like D.L. to live with them. The social worker spoke with the maternal grandmother that month, and the grandmother said she wanted to attend the next family team meeting by phone. In June, the paternal grandmother, who lives in the Los Angeles area, filed a relative information form indicating she wanted to speak to the judge at the next hearing. She also wanted to have the child placed with her and to take other actions to support the child (such as write letters to her and take her on outings).
The maternal grandmother is referred to in the record both as D.L.'s grandmother and as Mother's grandmother, apparently because she raised Mother. In the interest of clarity, we refer to her throughout as the maternal grandmother, even though she is technically the biological maternal great-grandmother of D.L.
At a jurisdictional hearing in June, the juvenile court sustained allegations under section 300, subdivisions (b), (c), and (j).
The Department reported in its disposition report that it had "identified several relatives as potential connections for the child," and that both the maternal and paternal grandparents had expressed interest in placement or even adoption if Mother failed to reunify with D.L. The Department had begun the initial placement applications for maternal grandparents and paternal grandmother, but the social worker was concerned that the fact they lived far away would present logistical challenges for providing reunification services. The Department reported it would work with state adoptions officials on possible relative adoption as an alternative plan for D.L.
At the disposition hearing on August 2, 2016, the juvenile court adjudged D.L. a dependent minor, ordered out-of-home custody for her, and ordered reunification services for Mother.
Mother struggled in her efforts to reunify with D.L. She ultimately stopped participating in services, and the Department recommended before the six-month review hearing that the juvenile court terminate Mother's reunification services. Around the time she stopped participating in services, Mother told a social worker that she wanted the maternal grandmother in Illinois to be considered as a permanent placement, and the social worker said she would forward the grandmother's information to a state adoptions worker for an assessment. The adoptions worker concluded after her assessment that placing D.L. with the maternal grandmother would not be in the minor's best interest because of concerns over the grandmother's mental health, her ability to maintain clear boundaries with Mother, and her ability to meet the possible mental health needs of D.L. in the future.
The juvenile court terminated Mother's reunification services at the six-month review hearing in March 2017 and scheduled a selection and implementation hearing under section 366.26. The Department recommended before the hearing that the court terminate both parents' parental rights and order adoption as the permanent plan. The foster parents, who had cared for D.L. since December 2016, were interested in adopting her. They had met the maternal grandmother and were open to maintaining a relationship between D.L. and her as well as with other birth family members.
At the selection and implementation hearing in October 2017, Mother objected to termination of parental rights but did not advance any exceptions to adoption. Counsel also stated that Mother objected to the conclusion that the maternal grandmother would not be a good placement for D.L.
The juvenile court concluded there was clear and convincing evidence D.L. was likely to be adopted, terminated Mother's parental rights, and selected adoption as the permanent plan. Mother timely appealed.
II. DISCUSSION
A. Mother Lacks Standing to Challenge the Alleged Failure to Place D.L. with the Maternal Grandmother
Mother argues the juvenile court prejudicially abused its discretion because it "failed to adequately assess the maternal grandmother" and because it "rel[ied] upon the [Department's] inadequate assessment without exercising its own independent judgment and in refusing Mother's objection to the [Department's] placement determination." We reject her argument because she does not have standing to raise it.
Our Supreme Court set forth guidance for determining standing in appeals of placement decisions in In re K.C. (2011) 52 Cal.4th 231, 236 (K.C.): "Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person for this purpose is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [Citations.] These rules apply with full force to appeals from dependency proceedings." In K.C., as in this case, the parent did not offer any argument in the juvenile court against terminating his parental rights, and the parties with whom the parent wanted his child placed were not parties to the appeal. (Id. at p. 235.) In a holding directly applicable here, the court held that the father lacked standing under such circumstances: "A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights. This rule does not support father's claim of standing to appeal because he did not contest the termination of his parental rights in the juvenile court. By thus acquiescing in the termination of his rights, he relinquished the only interest in [his child] that could render him aggrieved by the juvenile court's order declining to place the child with grandparents." (Id. at p. 238.) Under K.C., Mother lacks standing to challenge the relative placement. K.C. makes clear that where, as here, a parent does not challenge the termination of parental rights, the parent lacks standing to challenge the denial of a placement decision because reversal would not change the decision on the termination of parental rights. (Ibid.)
We disagree with Mother's argument that this case is akin to In re H.G. (2006) 146 Cal.App.4th 1. In H.G., the social services agency placed a child with her grandparents after reunification efforts with the child's parents failed, and the juvenile court terminated the parents' reunification services. (Id. at pp. 5-6.) The agency later filed a supplemental petition under section 387 and removed the child from her grandparents' care following allegations that the placement was no longer appropriate. (H.G., at pp. 6-7.) The juvenile court sustained the supplemental petition at a contested jurisdictional and dispositional hearing, then immediately proceeded to a selection and implementation hearing, terminated parental rights, and ordered a permanent plan of adoption. (Id. at pp. 7-8.) The Court of Appeal concluded the parents had standing to challenge the juvenile court's findings and order under section 387, because "a placement decision under section 387 has the potential to alter the court's determination of the child's best interests and the appropriate permanency plan for that child, and thus may affect a parent's interest in his or her legal status with respect to the child." (H.G., at p. 10.) Unlike the instant case in which Mother failed to challenge the termination of her parental rights in the juvenile court, the parents in H.G. challenged on appeal the juvenile court's findings under section 366.26. (H.G., at p. 18.) Moreover, from H.G., the Supreme Court in K.C. derived the rule that a parent has standing only if a placement order's reversal advances a parent's argument against the termination of parental rights. (K.C., supra, 52 Cal.4th at pp. 237-238.) Again, Mother does not challenge the termination of those rights.
Mother also relies on In re Esperanza C. (2008) 165 Cal.App.4th 1042, which likewise is distinguishable. There, a mother whose parental rights had been terminated appealed an order entered before termination which denied a relative's petition for placement under section 388. Because the resolution of the placement issue had the potential to alter the decision to terminate parental rights, the court determined the mother did have standing. (Esperanza C., at pp. 1050-1054; see K.C., supra, 52 Cal.4th at p. 238 [distinguishing Esperanza C.].) Again, by contrast here, Mother does not challenge the termination of her parental rights, and thus the alleged failure of the court to independently assess placement with the maternal grandmother did not have the potential to alter the court's decision to terminate parental rights.
In short, we conclude that Mother does not have standing in these circumstances to challenge the finding that the maternal grandmother was an inappropriate placement.
B. The Order Terminating Parental Rights Is Conditionally Reversed to Comply with ICWA
Mother contends the juvenile court erred in finding notice was proper under ICWA. The Department concedes error, and we agree a conditional remand is appropriate.
When the Department first asked about D.L.'s Indian ancestry, Mother reported that she might have Cherokee heritage, and D.L.'s father reported that he had no Native American ancestry. The Department notified three Cherokee-affiliated tribes based on the information Mother provided, and the tribes either did not respond or reported D.L. was not eligible for membership. The juvenile court found at the dispositional hearing that ICWA did not apply.
For the first time on appeal, Mother identifies three deficiencies in the Department's ICWA notice. First, she points to the section of the ICWA notice form listing the paternal great-grandparents' information, then notes that their birthdates are listed differently in the parent history chart attached to the form. But any error in information provided about paternal relatives is irrelevant given that D.L.'s father did not claim Indian ancestry.
Next, Mother faults the Department for listing both grandmothers' addresses as "unknown" on the ICWA notice form sent to the tribes, even though the Department had spoken to each grandmother and presumably could obtain their addresses. (Cf. § 224.2, subd. (a)(5)(C) [notices must include, among other things, relatives' current addresses].)
Additionally, Mother notes that relatives were described in the notice form as having "Pamunkey" Indian heritage, and she complains that the "ICWA Notice was not served on the Pamunkey tribe." She does not indicate where such notice should be mailed, and a review of a recent Federal Register does not identify the tribe on the list of designated tribal agents for service of ICWA notice. (83 Fed.Reg. 25685 et seq. (June 4, 2018).) But the Federal Register published on March 2, 2016, three months before notice was sent in this case, does list a contact for the Pamunkey Indian Tribe in King William, Virginia. (81 Fed.Reg. 10887, 10898 (Mar. 2, 2016).) In an abundance of caution, we shall reverse the order terminating Mother's parental rights so notice may be provided to the Pamunkey tribe. The ICWA notice forms should be corrected as Mother urges, and the tribes previously noticed should be renoticed.
III. DISPOSITION
The order terminating Mother's parental rights is conditionally reversed and remanded to the juvenile court, which is directed to ensure that proper notice is given under ICWA. If, after receiving notice, no tribe intervenes, the juvenile court shall reinstate the order. (In re Louis S. (2004) 117 Cal.App.4th 622, 634.) In all other respects, the order terminating Mother's parental rights is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.