Opinion
E080514
08-08-2023
In re T.C., a Person Coming Under the Juvenile Court Law. v. K.T., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. (Super.Ct.No. RIJ2100716) Dorothy McLaughlin, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, and Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
When T.C. (T.) was six, the juvenile court ordered her and her younger half-sister detained from their mother, K.T. (mother); it then adjudicated them dependents based on the mother's mental health issues, substance abuse, and unstable housing. The juvenile court granted sole custody of the half-sister to the half-sister's father. At the 12-month review hearing, the juvenile court refused to return T. to the mother's custody and set an 18-month review hearing instead.
The mother appeals. We will hold that there was substantial evidence to support the juvenile court's refusal to return T. to the mother. We will also hold that the social services agency had a duty to inquire of extended relatives under state law implementing the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA), regardless of how T. entered in its custody. (See Welf. &Inst. Code, § 224.2, subd. (b).) It failed to fully perform this duty; therefore, the juvenile court erred by finding that ICWA did not apply.
All further statutory citations are to the Welfare and Institutions Code.
I
EVENTS LEADING TO THE DEPENDENCY
The mother has two daughters. T. was six when the dependency was filed. L.M. (L.) was four. J.M. (J.) is the father of L., but not T. The mother could not or would not identify T.'s father.
The children lived with the maternal grandparents. The mother claimed she lived with them; the maternal grandmother (and T.) denied this. Apparently, the mother stayed overnight sometimes, slept in a van sometimes, and sometimes went off to "do[] her thing." However, she did dress and feed the children, take T. to school, bathe them, and put them to bed.
The mother had been diagnosed as having schizophrenia and bipolar disorder, but she was not under treatment.
The mother agreed that J. could visit L. on November 12, 2021. On that date, however, she was upset as a result of a delusion that L.'s paternal grandmother (J.'s mother) was on her ex-husband's dating profile. She texted J. that she "would kill L[.] and put her underneath Lake Perris then kill [J.] with a gun." She then deleted the text. J. said this was not the first time the mother had made delusional accusations against him.
J. contacted the police. The police, in turn, contacted the maternal grandfather, who brought L. in to the police station. The police turned L. over to J. Meanwhile, the mother called police and said J. had kidnapped L.
When L.'s paternal grandmother undressed L. for a bath, she found urine stains and dried feces on her underwear. When the social worker interviewed L., she said "she wanted to stay with [J.] because the mother was mean."
When interviewed, the mother was not entirely coherent. She claimed her deleted text had said, "The shoes you bought [L.] would be at by the end of the lake." She agreed that it did not make sense.
The mother tested negative for drugs. She admitted that she smoked marijuana, then later denied it.
The mother filed an ex parte request for custody of L., which was denied. Nevertheless, she showed up at J.'s house, with a police officer, to get L. L.'s paternal grandmother answered the door. When L. came to the door, the mother grabbed her; the paternal grandmother grabbed her back. On the officer's advice, the mother left without L.
II
STATEMENT OF THE CASE
In November 2021, the Department of Public Social Services (Department) filed a dependency petition concerning both children. Although the Department had not detained the children, it recommended that they be detained from the mother, that T. be detained from her unknown father, and that L. be placed with J. At the initial hearing, the juvenile court followed these recommendations. T. was placed in a foster home.
In December 2021, the juvenile court sustained jurisdiction over both children based on failure to protect (§ 300, subd. (b)), and over T. based on her unknown father's failure to support. (§ 300, subd. (g).) It formally removed both children from the mother's custody. It granted J. sole custody of L. and terminated jurisdiction over L. (effective upon filing of family law orders). It ordered reunification services for the mother with respect to T.
The mother drug-tested negative. However, she admitted continuing to use marijuana. She claimed to have obtained housing, but she refused to let a social worker inside. A psychological evaluation concluded that she needed therapy and parenting classes.
In June 2022, at the six-month review hearing, the juvenile court found that the mother had made "minimal" progress and that returning T. to her "would create a substantial risk of detriment." It therefore continued reunification services and set a 12-month review hearing.
In July 2022, T. was placed with the maternal grandmother.
In December 2022, at the 12-month review hearing, the juvenile court found that the mother had made "[a]dequate but incomplete" progress and that returning T. to the mother "would create a substantial risk of detriment." It therefore continued reunification services and set an 18-month review hearing.
III THE SUFFICIENCY OF THE EVIDENCE THAT RETURN WOULD BE DETRIMENTAL
The mother contends that the juvenile court erred by refusing to return T. to her custody, because there was insufficient evidence that return would be detrimental.
A. Additional Factual Background.
The evidence before the juvenile court at the 12-month review hearing consisted of the social worker's report for that hearing, plus a subsequent addendum report. We confine our review to that evidence. (See In re L.A.-O. (2021) 73 Cal.App.5th 197, 207208.)
The mother was employed part-time as a security guard. She said that, if she got custody of T., she would switch to being an Uber driver. However, she also said she was going back to school. The maternal grandmother would care for T. while she worked.
The mother was living in a two-bedroom section 8 apartment. She told the social worker she might be losing the apartment because T. and L. were not in her custody. She also said that if she got custody of T. but not L., she would have to move to a smaller apartment. Once she got custody, she wanted to live with the maternal grandparents.
The mother had completed a psychological evaluation. According to her, it showed a "mild personality disorder," and there was "no cure."
The psychological evaluation was never filed with the court.
The mother had enrolled in anger management classes; she attended ten sessions, but she was terminated after missing four. In August 2022, she re-enrolled in anger management classes. She was expected to complete them in January 2023. Her anger management therapist reported that her participation was "satisfactory" and she was "making progress toward treatment goals." (Capitalization altered.)
Meanwhile, in June 2022, the mother successfully completed parenting classes. She was supposed to participate in T.'s therapy but had not done so.
In November 2022, the social worker was unable to carry out a home visit because no one answered the door; the mother later said she was home sick and did not hear the doorbell.
On December 5, 2022, the mother reported that her apartment had been vandalized; someone had broken a front and back window.
At a home visit on December 7, 2022, the mother said someone broke in through the back window. A second bedroom, which would be T.'s, was empty; the mother said "she had to get rid of everything inside because of her mental issues," but she had a futon that T. could use.
There were two large trash bags in the hallway. The mother's dog had chewed through one, so trash was spilling out. The mother said she was about to take them to the dumpster. In a back patio area, there were "a lot of items piled" outside an empty shed. The mother said they had been there for over a year. She admitted that she had not let the previous social worker inspect the home "because she did not trust her."
The mother claimed she had not used marijuana since February 2022. In December 2022, she missed two drug tests. She later explained that she could not test because she had no photo ID, but she had applied for one.
The mother had visitation once a week for a minimum of two hours at a time, supervised by the maternal grandmother. The mother reported, however, that she visited twice a week. "[O]verall the visits [went] well ...." T. said she enjoyed the visits. At the jurisdictional/dispositional hearing, the juvenile court had authorized the Department to liberalize visitation, once the mother complied with her case plan; she had not yet fully complied, so it had not done so.
T. was placed with the maternal grandmother. She was reportedly "thriving." She "ha[d] adjusted well to the home" and said she was "happy in the home." "The maternal grandmother provide[d] a stable, loving environment, [wa]s attentive to T[.]'s needs, and [wa]s ensuring that [T.] receive[d] all needed services."
In the social worker's opinion, "The mother needs to complete her services and needs to demonstrate her ability to maintain a permanent residence for herself and child to permit a safe visitation environment and protective parenting practices in order for her daughter to be returned to her care and custody."
B. The Juvenile Court's Ruling.
In finding detriment, the juvenile court explained: "[M]other [is] not maybe focusing on the things that need to be focused on to get where she needs to be or where she wants to be." It was "concern[ed]" that she was frustrated about J. being given custody of L. It was also concerned about whether the reported break-in to her apartment actually happened or was a sign of a mental health problem. It noted that "the psych eval . . . unfortunately . . . didn't seem to give a lot of information about how she's doing." Finally, it found that the mother had "made adequate but incomplete progress ...."
C. Applicable Legal Standards.
At a 12-month review hearing, the juvenile court must "order the return of the child to the physical custody of their parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to their parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1).)
"In making its determination, the court . . . shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which they availed themselves of services provided." (§ 366.21, subd. (f)(1)(C).)
"[A detriment] finding is reviewed for substantial evidence. [Citation.]" (In re D.N. (2020) 56 Cal.App.5th 741, 764.) Under this standard, "[i]t is not our function . . . to reweigh the evidence or express our independent judgment on the issues before the trial court. [Citation.] Rather, as a reviewing court, we view the record in the light most favorable to the judgment below and '"decide if the evidence [in support of the judgment] is reasonable, credible and of solid value - such that a reasonable trier of fact could find [detriment] based on clear and convincing evidence. [Citation.]"' [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 423; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005-1010.)
D. Application to These Facts.
There was ample evidence that - as the trial court found - the mother's progress was incomplete. She had quit her anger management classes; as a result, although she had re-enrolled, she had not yet completed them. She had also failed to drug-test twice. She claimed this was due to her lack of a photo ID. However, her reunification services plan had required her to drug-test since June 2022 - more than enough time to get a photo ID in time for the tests in December 2022. Moreover, on December 5, when the social worker asked her to drug-test the next day, she agreed to do so, and on December 7, when the social worker asked her to drug-test that day, once again she agreed to do so. She did not claim she could not; in particular, she did not claim on December 7 that she had been unable to drug-test on December 6.
There were continuing concerns about the mother's mental health - the precipitating cause of the dependency. She told a social worker that someone broke both a front and a back window. When a social worker visited, however, the mother said only the back window was broken. The juvenile court reasonably questioned whether this actually happened. Moreover, the mother offhandedly said "she had to get rid of everything inside [T.'s intended bedroom] because of her mental issues." And she conceded that she had an incurable personality disorder.
The mother's reunification services plan required her to "obtain and maintain a residence that is suitable to accommodate the child[]." The mother admitted that she did not allow the previous social worker to visit to verify compliance. When she finally did allow a social worker to visit, there were two large trash bags in the hallway. She said she had been about to take them out. However, they had been there long enough for her dog to chew through one; trash was spilling out, and the mother had not cleaned it up. This was not "suitable."
Moreover, her housing situation was not stable. She said she might be losing her section 8 apartment, or she might have to move to a smaller apartment. However, she also said that, if she got custody, she wanted to live with the maternal grandmother. Thus, it was not clear where, if T. were returned to her, they would live.
The mother aims her attack at the juvenile court's statement of reasons. For example, it said she was not "focusing" on what she needed to do in T.'s case and was "frustrated" about losing custody of L. The mother retorts, "Of course any mother who had their child placed with their ex-partner would be disappointed, especially in a case like this where the siblings would be separated." However, this does not respond to the juvenile court's concern that she was not complying with her services in this case.
Likewise, the juvenile court observed that the psychological evaluation "didn't seem to give a lot of information about how she's doing." The mother protests, "That evaluation was not Mother's fault ....[¶] The burden was on the Department ...." As already discussed, however, there was substantial evidence that the mother had unresolved mental health issues. If the psychological evaluation had been more thorough - indeed, if it had been filed at all - it might have rebutted that evidence. At a minimum, it might have shed some light on what services the mother needed to help her with them. In the absence of the psychological evaluation, however, the juvenile court could reasonably conclude that the mother's mental health issues persisted and tended to support a finding of detriment.
At one point, the mother argues, "it was in T[.]'s best interest to be placed back with Mother, or at a minimum, have unsupervised visits." (Italics added.) We do not view this is a separate assignment of error, as it is not raised under a separate heading, and it is not supported by any authority. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)
It lacks merit in any event. "'While visitation is a key element of reunification, the court must focus on the best interests of the children "and on the elimination of conditions which led to the juvenile court's finding that the child has suffered, or is at risk of suffering, harm ...."' [Citation.]" (Serena M. v. Superior Court of Fresno
County (2020) 52 Cal.App.5th 659, 673.) "Visitation orders in dependency cases are typically reviewed for abuse of discretion and will not be reversed absent a 'clear showing of an abuse of discretion.' [Citation.]" (In re J.P. (2019) 37 Cal.App.5th 1111, 1119.) Here, the mother had not yet eliminated the conditions that led to the dependency. In particular, as long as concerns about her mental health persisted, the juvenile court could reasonably require visits to be supervised.
IV
FAILURE TO MAKE AN ICWA INQUIRY OF EXTENDED RELATIVES
The mother contends that the Department failed to carry out its duty of initial inquiry under state law implementing ICWA.
A. Additional Factual and Procedural Background.
The mother, the father, and the maternal grandmother denied any Indian ancestry.
As T.'s father is unknown, the Department had no duty to inquire of any paternal relatives.
Both maternal grandparents attended the initial hearing. However, the trial court made no inquiry about their Indian ancestry.
At the initial hearing, the jurisdictional/dispositional hearing, the six-month review hearing, and the 12-month review hearing, the juvenile court found that ICWA did not apply.
B. Discussion.
"The court [and the] county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition . . . has been filed[] is or may be an Indian child." (§ 224.2, subd. (a).) "'Th[is] continuing duty . . . "can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice.'" [Citations.]" (In re Antonio R. (2022) 76 Cal.App.5th 421, 429.)
Initially, under federal law, the juvenile court "must ask each participant" in a dependency "at the commencement of the proceeding" "whether the participant knows or has reason to know that the child is an Indian child." (25 C.F.R. § 23.107(a) (2016).)
By state statute: "(a) The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.
"(b) If a child is placed into the temporary custody of a county welfare department pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, . . . [and] extended family members . . . whether the child is, or may be, an Indian child ....
"(c) At 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." (§ 224.2, italics added.)
In addition, by state court rule, "[t]he party seeking a foster-care placement [or] termination of parental rights . . . must ask the child, . . . the parents, . . . [and] extended family members . . . whether the child is or may be an Indian child ...." (Cal. Rules of
Court, rule 5.481(a)(1), italics added.) "The petitioner must on an ongoing basis include in its filings a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status ...." (Cal. Rules of
Court, rule 5.481(a)(5).)
Then, "[i]f the court [or] social worker . . . has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court [or] social worker . . . shall make further inquiry regarding the possible Indian status of the child." (§ 224.2, subd. (e).)
Finally, in a dependency that could result in a foster care placement or termination of parental rights, if "[t]here is reason to know a child involved in a proceeding is an Indian child," notice of the proceeding must be given to the relevant tribe or tribes. (25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.11(a), 23.111; § 224.3, subd. (a); Cal. Rules of Court, rule 5.481(c)(1).)
"A juvenile court's finding that ICWA does not apply includes an implicit finding that social workers fulfilled their duty of inquiry. [Citation.] '[W]e review the juvenile court's ICWA findings under the substantial evidence test, which requires us to determine if reasonable, credible evidence of solid value supports the court's order.' [Citations.]" (D.S. v. Superior Court (2023) 88 Cal.App.5th 383, 390.)
As the Department concedes, so far as the record shows, it made no ICWA inquiry of the maternal grandfather. It argues, however, that it had no duty to inquire of extended family members, because T. was not "placed into the temporary custody of a county welfare department pursuant to Section 306," within the meaning of section 224.2, subdivision (b).
Section 306 provides: "(a) Any social worker in a county welfare department . . . may . . .:
"(1) Receive and maintain, pending investigation, temporary custody of a child who is described in Section 300, and who has been delivered by a peace officer.
"(2) Take into and maintain temporary custody of, without a warrant, a child who has been declared a dependent child of the juvenile court under Section 300 or who the social worker has reasonable cause to believe is a person described in subdivision (b) or (g) of Section 300, and the social worker has reasonable cause to believe that the child has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child's health or safety."
Here, the social worker did not detain T. at all. It was the juvenile court, at the initial hearing, that ordered her detained. Thus, the Department is correct that she was not placed into its temporary custody pursuant to section 306.
The mother did not argue below and does not argue on appeal that the juvenile court lacked the power to detain T.
Recently, however, in In re Delila D. (2023) 2023 Cal.App. LEXIS 554, a panel of this court held that "there is only one duty of initial inquiry, and that duty encompasses available extended family members no matter how the child is initially removed from home." (Id. at p. *3.) As relevant here, it stated three reasons. "First, section 224.2(b) does not state that the inquiry it describes applies 'only if' a child is taken into temporary custody under section 306. [Citation.]" (Id. at p. *26.) "Second, rule 5.481 requires social workers to make the inquiry described in section 224.2(b) any time the department is 'seeking a foster-care placement, . . . termination of parental rights, preadoptive placement, or adoption.' [Citation.]" (Id. at pp. *27-*28.) "Third and perhaps most importantly, it simply doesn't make sense to apply different initial inquiries depending on how the child was initially removed from home, as that procedural happenstance has nothing to do with a child's ancestry." (Id. at p. *28.)
We recognize that there is an intradistrict split of authority on this point. (In re Ja.O. (2023) 91 Cal.App.5th 672, 677-680 [Fourth Dist., Div. Two], review granted, July 26, 2023, S280572; In re Robert F. (2023) 90 Cal.App.5th 492, 497, 500-504 [Fourth Dist., Div. Two], review granted, July 26, 2023, S279743.) The issue is currently before the Supreme Court. Accordingly, there is no point in repeating or elaborating on Delila D.'s reasons for refusing to follow these cases. Suffice it to say that Delila D. is the most recent decision and, this panel believes, the better reasoned decision, for the reasons stated in Delila D. itself. We will adhere to it until the Supreme Court tells us not to.
The Department (and the juvenile court) therefore had a duty to conduct an ICWA inquiry of extended relatives. They did not. The Department argues that this was harmless error. Significantly, however, this is not an appeal from an order terminating parental rights; rather, it is an appeal from jurisdictional/dispositional orders. In this procedural posture, there is no need to reverse the orders themselves. However, because the duty of inquiry is a continuing duty, we must reverse the finding that ICWA does not apply and remand for a further inquiry. (In re Dominick D. (2022) 82 Cal.App.5th 560, 567-568.)
V
DISPOSITION
The finding that ICWA does not apply is vacated. The juvenile court is directed to order the Department to comply with its inquiry and (should they prove applicable) its notice obligations under ICWA and related state and federal law. In all other respects, the orders appealed from are affirmed.
WE CONCUR: MCKINSTER J. RAPHAEL J.