Opinion
E077912
03-02-2022
In re G.V., a Person Coming Under the Juvenile Court Law. v. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, A.V., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, Pamela J. Walls, Special Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J285311. Christopher B. Marshall, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, Pamela J. Walls, Special Counsel for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant A.V. (Father) appeals the termination of his parental rights to G.V. (Minor) at a Welfare and Institutions Code section 366.26 hearing. Father contends the juvenile court erred by (1) refusing to grant his request for a continuance of the section 366.26 hearing so that he could be present; and (2) the juvenile court's ruling that the Indian Child Welfare Act (ICWA) did not apply must be reversed for the failure of plaintiff and respondent San Bernardino County Children and Family Services (the Department) to adequately perform its initially duty of inquiry about Indian ancestry to determine whether Minor was an Indian child.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in April 2018. On May 28, 2020, customers at a Target store contacted law enforcement that there was a child in a car in the parking lot and that the car had been in the parking lot for some time. N.Z. (Mother) was in the car but was unconscious. There were multiple open containers of alcohol in the vehicle. The vehicle was hot inside and the doors were locked. Mother was incoherent once officers were able to wake her up. Mother was taken into custody on a charge of child endangerment.
Mother is not a party to the appeal.
Minor's diaper and clothing were heavily soiled. Minor was detained. Father's whereabouts were unknown. Paternal aunt, M.E.V. (Aunt1) contacted the Department and wanted to take custody of Minor. On May 29, 2020, Minor was placed with Aunt1. Father had an extensive criminal history, which included possession of drugs, driving under the influence and domestic violence.
The Department filed a section 300 petition against Parents on June 1, 2020 (Petition). It was alleged under section 300, subdivision (b), failure to protect, that Father: (1) had a history of substance abuse issues; (2) had left Minor without providing adequate care and supervision; (3) knew or should have known that Mother had substance abuse problems but left Minor in her care; and (4) had a criminal history of substance abuse and domestic violence, which posed a serious risk of harm to Minor. It was alleged pursuant to section 300, subdivision (g), that he provided no provision of support based on Father currently being in federal custody and left Minor with no provisions of care. No ICWA inquiry had been made as Mother was unavailable.
A detention hearing was held on June 2, 2020. Father was not present. A prima facie case for detention was established and Minor was ordered detained from Parents. Minor was to remain placed with Aunt1. The trial court inquired as to Mother whether there was any Indian heritage and she stated she had none. Mother filed an ICWA-020 form indicating she had no Indian heritage. Father was ordered to complete the form and submit it to the juvenile court.
B. JURISDICTION/DISPOSITION REPORT AND HEARING
The jurisdiction/disposition report was filed on June 24, 2020. The Department requested that the juvenile court find the allegations in the Petition true, and grant no reunification services to Parents. Minor would remain in the care of Aunt1. The Department noted that ICWA did not apply as Mother had denied any Indian ancestry. Father could not be found. Mother was not available to interview.
Parents had previously had Minor removed from their custody in July 2018 due to domestic violence and substance abuse. Father did not complete his reunification services. Minor was placed in Mother's custody on a family maintenance plan. Father had no contact with Minor since 2018.
On June 26, 2020, Father filed a notification of mailing address. He also signed an ICWA-020 form. He checked the box that he was the parent of Minor. No other boxes were checked identifying whether there was any Indian ancestry in the family.
On June 29, 2020, the matter was set contested on behalf of Mother. A declaration of due diligence was filed by the Department as to the search for Father. It was discovered he was in a federal prison in San Diego. All forms and notices were sent to Father. Father was appointed counsel. Father submitted a statement regarding parentage. He also submitted a letter advising the juvenile court that he wanted to care for Minor if he was released from custody. He wanted his family to care for Minor until he was released. He advised the juvenile court he was being transferred to Victorville on June 30, 2020, and that he was to be released by the end of the year.
On September 21, 2020, Father's counsel appeared on behalf of Father. Father was in custody in federal prison. Father's counsel acknowledged receipt of the Petition and waived formal reading and advisal of rights. Father was requesting to be transported to the juvenile court. The jurisdiction/disposition hearing was continued in order for Father to be transported to court.
On November 2, 2020, the jurisdiction/disposition hearing was again continued in order for Father to be transported from federal custody. The Department could not interview Father for the jurisdiction/disposition hearing because of the Covid pandemic. The prison would not allow any contact with inmates in federal custody. The Department filed additional information on December 7, 2020, that it had been unsuccessful in attempting to contact Father, and Mother had not maintained contact or completed any of her pre-disposition services.
On December 10, 2020, the Department added as an additional finding for disposition that Father was incarcerated, institutionalized, detained by Homeland Security or had been deported to his country of origin. Granting reunification services would be detrimental to Minor.
The jurisdiction/disposition hearing was held on December 10, 2020. Parents were not present. No evidence was presented by either Parent. The trial court found the allegations in the Petition true. Father was found to be the presumed father.
Reunification services for both Parents were denied. Minor remained placed with Aunt1. According to the minute order, the trial court also concluded that ICWA did not apply but the reporter's transcript has no reference to the trial court's determination on ICWA. The matter was set for a section 366.26 hearing.
On January 25, 2021, the trial court ordered that Father be transferred to court on February 23, 2021, for further notice review. A transport order was signed. Father had not been transported on February 23, 2021. The federal facility had not responded. Further notice review was set for March 11, 2021; the section 366.26 hearing was set for May 24, 2021. The Department requested Father be served with notice of the section 366.26 hearing through his attorney as all efforts to contact Father had been unsuccessful. On March 11, 2021, a further notice review hearing was held. Father was not present and the matter was continued to April 9, 2021. The trial court ordered that Father be served through his counsel.
C. SECTION 366.26 REPORT
The first section 366.26 report was filed on April 5, 2021. The Department requested a continuance to further assess the prospective adoptive home. Minor had been living with Aunt1, who was willing to be a legal guardian to Minor. However, M.C.V. (Aunt2), who was Aunt1's sister, wanted to adopt Minor. The Department wanted to investigate adoption by Aunt2. It was also reported that paternal grandmother was very involved in Minor's life and provided childcare during the day. Minor had a minor speech delay but was otherwise developing normally. She was bonded to her paternal aunts and grandmother. Minor had no visitation with Father. Mother had intermittently visited with Minor but at times appeared to be under the influence.
The Department noted as to ICWA that Mother had filed an ICWA-020 denying Indian ancestry. It was noted as to Father that it was unknown whether he had Indian ancestry as he could not be located. It was further noted that an "inquiry" was made to Aunt1 on June 19, 2020; she denied any Indian ancestry.
On April 9, 2021, the trial court found notice of the section 366.26 hearing had been given to Parents. Father was not present. The section 366.26 hearing was continued to August 9, 2021, at 8:30 a.m. in order to implement the permanent plan of adoption. Parents were ordered to appear by telephone or the matter would proceed in their absence.
A second section 366.26 report was filed on July 29, 2021. Minor was three years old. She had been living with Aunt2, the prospective adoptive parent, since March 11, 2021. Minor had a positive attachment to Aunt2. Aunt2 had strong support from her family to help raise Minor. Minor would benefit from the stable adoptive home Aunt2 could provide. Aunt2 was open to allowing Father to have supervised visits with Minor. It was recommended that Minor be freed for adoption and that parental rights be terminated.
On August 2, 2021, an order to transport Father to the section 366.26 hearing was signed by the juvenile court. On August 9, 2021, the section 366.26 hearing was continued in order for Father to be present.
D. SECTION 366.26 HEARING
The section 366.26 hearing was held on September 20, 2021. Father was not present, as will be set forth in further detail, post. No evidence was presented. The juvenile court terminated parental rights of Parents, and freed Minor for adoption.
DISCUSSION
A. DENIAL OF CONTINUANCE OF SECTION 366 HEARING
Father contends the order terminating parental rights must be reversed because the juvenile court erred in denying his counsel's request for a brief continuance so that Father could be present at the section 366.26 hearing.
1. ADDITIONAL FACTS
The section 366.26 hearing was called on August 9, 2021. Father was not present and was still in custody in Victorville. Father's counsel requested that the section 366.26 be set contested for Father to testify. Father was to be released from custody on September 16, 2021. Father had been corresponding with counsel. Father believed he had a strong bond with Minor; he had been sending weekly letters to Minor and he should be allowed to testify about his bond with Minor. Father's counsel wanted to set the section 366.26 hearing for some time after September 16, 2021. The trial court agreed to continue the matter until September 20, 2021. Father's counsel was admonished that the hearing would begin at 8:30 a.m., and if Father failed to appear, the matter would proceed in his absence.
The section 366.26 hearing was called on September 20, 2021. Father's counsel was in court but Father was not present. The juvenile court noted the matter had been set contested so that Father could testify. Father was not present and the juvenile court set the matter to the end of the morning calendar. The juvenile court recalled the case, and noted that it was 11:39 a.m.; Father was still not present. Father's counsel represented that Father had contacted her that he was only a few minutes away. It was his intent to be present. Father's counsel requested a continuance. The juvenile court responded, "Okay. The Court is going to find it's not good cause to grant a continuance, and we have been here all morning. And so it's now 11:39, and the Court's going to go ahead and proceed.
Father's counsel objected to the termination of parental rights arguing that Father had maintained some contact with Minor while in custody. Minor was aware of Father and it would be detrimental to Minor to lose the parental relationship. The juvenile court in terminating parental rights, noted that Minor had been detained in May 2020 and at that time, Mother reported that Father had not seen Minor since 2018. Minor had spent a significant amount time out of Parents' custody. Further, Father had been in custody and had no face-to-face visits with Minor. The juvenile court found that letter contact did not "rise to the level of establishing any meaningful bond, given the age of this child and her appreciation for what he could write or having knowledge of him from a physical presence standpoint."
2. DENIAL OF CONTINUANCE
"Continuances are discouraged in dependency cases." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) However, section 352, subdivision (a)(1) provides, "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that a continuance shall not be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. Subdivision (a)(2) of section 352 provides that "Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary." Subdivision (a)(3) further provides, "In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance."
"The trial court's ruling on whether a request for a continuance came within those guidelines is reviewed for abuse of discretion." (In re B.C. (2011) 192 Cal.App.4th 129, 143-144.)" 'To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.'" (In re Emily (2015) 234 Cal.App.4th 438, 448.)
Here, the section 366.26 hearing had been continued so that Father could appear. On August 9, 2021, Father's counsel represented that Father was to be released from custody on September 16, and the trial court agreed to a continuance to September 20. The juvenile court admonished Father's counsel that if Father was not present at 8:30 a.m. on the date of the hearing, it would proceed in his absence. Father did not appear at 8:30 a.m. The juvenile court put the matter at the end of the calendar so that Father could appear. However, at 11:39 a.m., Father had still not appeared, and the juvenile court denied a continuance noting that the matter needed to be resolved. The juvenile court gave Father every opportunity to appear and he failed to timely appear despite being released from custody four days prior to the hearing, and providing no excuse for his failure to appear in a timely manner. The trial court did not abuse its discretion by denying the continuance.
Father additionally contends he could have testified as to the bond between him and Minor. As noted by the juvenile court, Minor was born in April 2018, and Mother reported that Father had not seen Minor since 2018. Father had been incarcerated since October 2019. There is nothing in the record to support that Father could produce evidence of a significant bond between him and Minor. For two years, the only contact between Father and Minor was by letter, but Minor was only two years old.
Additionally, Father could not meet the beneficial parental exception to termination of his rights as he failed to maintain consistent visitation. (§ 366.26, subdivision (c)(1)(B)(i) [an exception to termination of parental rights exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship"].) The juvenile court did not abuse its discretion by denying the request by Father's counsel to continue the section 366.26 hearing.
B. ICWA NOTICE
Father insists the order terminating parental rights should be reversed because the Department failed to comply with the initial inquiry requirements of ICWA and section 224.2, subdivision (b). Father additionally contends that he could have provided additional evidence of Minor's Indian ancestry.
"Congress enacted ICWA in 1978 in response to 'rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.'" (Isaiah W. (2016) 1 Cal.5th 1, 7.)" '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.'" (In re S.R. (2021) 64 Cal.App.5th 303, 313.)
To that end, "ICWA provides: 'In 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 the foster care placement of, or termination of parental rights to, an Indian child, . . . shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' [Citation.] ICWA also requires child welfare agencies to notify the [Bureau of Indian Affairs] of the proceedings, if the juvenile court knows or has reason to know the child may be an Indian child but the identity of the child's tribe cannot be determined." (In re N.G. (2018) 27 Cal.App.5th 474, 479-480, fns. omitted.)" 'ICWA itself does not impose a duty on courts or child welfare agencies to inquire as to whether a child in a dependency proceeding is an Indian child. [Citation.] . . . . [¶] . . . ICWA provides that states may provide "a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under" ICWA.' Y:" (In re J.S. (2021) 62 Cal.App.5th 678, 685.)
Pursuant to California law, "An initial 'duty of inquiry applies to every "child for whom a petition under Section 300, 601, or 602 may be or has been filed" [citation],' the 'duty of further inquiry applies when there is a "reason to believe that an Indian child is involved [or, under Cal. Rules of Court, rule 5.481(a)(4), 'may be involved'] in a proceeding" [citation],' and 'the duty to provide notice to Indian tribes applies only when one knows or has a "reason to know . . . an Indian child is involved." '" (In re J.S., supra, 62 Cal.App.5th at p. 688.) As for the initial duty of inquiry, section 224.2 subdivision (b), provides "Inquiry 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 and where the child, the parents, or Indian custodian is domiciled."
"' "The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings."' [Citation.] 'If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence.'" (In re Y.W. (2021) 70 Cal.App.5th 542, 552; see also In re A.M. (2020) 47 Cal.App.5th 303, 314.)
Here, Father was given the opportunity to disclose his Indian ancestry when he completed an ICWA-020 form. However, Father only signed it, failing to check any of the boxes. Father's ICWA-020 form provided no information to the Department that Minor had any possible Indian ancestry. The Department was unable to speak directly to Father because he was in federal custody, but Father clearly had an opportunity to disclose his Indian ancestry and failed to do so. The Department also queried Aunt1, Father's sister, as to any Indian ancestry. She responded that there was no Indian ancestry. The Department did not inquire of paternal grandmother, who was helping to care for Minor, and was readily available, whether she had any Indian ancestry. However, it reasonably could conclude, based on the fact that Father failed to declare any Indian ancestry, and Aunt1's denial of Indian ancestry, that any further inquiry was unnecessary. The record supports that the Department made an adequate initial inquiry pursuant to section 224.2.
Even if the Department did not adequately perform its initial inquiry pursuant to section 224.2, subdivision (b), by failing to speak with paternal grandmother, reversal is not required. The Department contends any error in failing to contact paternal grandmother was harmless. The Department insists there is no evidence that paternal grandmother had or might have any new information regarding Minor's Indian ancestry and Father never indicated that he had Indian ancestry in the trial court or on appeal. Father contends reversal is required in order for the Department to conduct further inquiry.
In In re Benjamin (2021) 70 Cal.App.5th 735 (Benjamin), the father of the child never made an appearance in the case. The Department had some contact with his extended relatives, but nothing in the record supported that the Department asked any of the relatives about their Indian ancestry. (Id. at p. 740.) At the jurisdiction/disposition hearing, the juvenile court concluded that ICWA did not apply. Only the mother of the child appealed, and she claimed that the order terminating parental rights to the child must be reversed for the failure to comply with the duty of initial inquiry as to the father of the child's potential Indian ancestry. (Ibid.) On appeal, this court found that "neither the duty of further inquiry nor ICWA's notice provisions are at issue because no one has contended there is 'reason to believe' [the child] is an Indian child. Rather, [the mother's] contention has to do with the effect of [the Department]'s conceded failures during its initial inquiry to gather information that could have triggered additional duties and 'heightened requirements.'" (Id. at p. 742.)
This court found in Benjamin that the failure to make an initial inquiry was a violation only of state law, and that reversal was only necessary if there was a showing of prejudice. (Benjamin, supra, 70 Cal.App.5th at p. 742.) This court found the proper inquiry for prejudice is as follows: "We believe that in ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Id. at p. 744.) This court concluded reversal was necessary because the record indicated that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child, which the agency failed to investigate. It did not require that a parent provide some type of evidence of Indian ancestry. (Id. at pp. 744-745)
In In re A.C. (2021) 65 Cal.App.5th 1060 (A.C.), this court found that the failure of the Department to inquire of the child's father and paternal extended family members whether the child had Indian ancestry was harmless. The A.C. court concluded as such based on the father of the child not claiming Indian ancestry in the juvenile court or on direct appeal. This court found as to the question of prejudice, after determining that the Department committed error by failing to make adequate initial inquiry, "must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error." (Id. at p. 1069.) "This means a parent asserting failure to inquire must show-at a minimum-that, if asked, he or she would, in good faith, have claimed some kind of Indian ancestry." This included considering evidence raised for the first time on appeal that there was Indian ancestry. The court reasoned that considering this evidence favored the child's father, as he was unable to show prejudice on the record. (Id. at pp. 1069, 1071, 1073; see also In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 ["Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not"].)
Recently this court found in another case that "The purpose of ICWA and related California statutes is to provide notice to the tribe sufficient to allow it to determine whether the child is an Indian child, and whether the tribe wishes to intervene in the proceedings. [Citation.] Thus, we reasoned, appellate review of ICWA compliance issues 'should not be derailed simply because the parent is unable to produce [or has not produced] an adequate record.'" (In re N.G., supra, 27 Cal.App.5th at p. 484.) This court noted, "in a case such as this one, where the record does not show what, if any, efforts the agency made to discharge its duty of inquiry [citations], and the record also does not show that all required ICWA notices were given or that the ICWA notices that were given included all known identifying information, the burden of making an adequate record demonstrating the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements must fall squarely and affirmatively on the court and the agency. In the absence of an appellate record affirmatively showing the court's and the agency's efforts to comply with ICWA's inquiry and notice requirements, we will not, as a general rule, conclude that substantial evidence supports the court's finding that proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a general rule, we will find the appellant's claims of ICWA error prejudicial and reversible." (Ibid.)
The court in In re Y.W., supra, 70 Cal.App.5th 542 pointed out a flaw in the reasoning in A.C. "A parent, however, does not need to assert he or she has Indian ancestry to show a child protective agency's failure to make an appropriate inquiry under ICWA and related law is prejudicial. The court[] in . . . . In re A.C., supra, 65 Cal.App.5th 1060, [] missed (and the Department's argument misses) the point of the statutory requirement that the social worker ask all relevant individuals whether a child is or may be an Indian child: to obtain information the parent may not have. It is unreasonable to require a parent to make an affirmative representation of Indian ancestry where the Department's failure to conduct an adequate inquiry deprived the parent of the very knowledge needed to make such a claim. [Citation.] The Department's failure to conduct an adequate inquiry into [the children]'s possible Indian ancestry makes it impossible for [the parents] to demonstrate prejudice." (Y.W., at p. 556.)
This court in Benjamin, supra, 70 Cal.App.5th 735, further rejected the reasoning in A.C., finding that "We believe, however, that the facts of this case show why such a requirement is contrary to the framework of ICWA and to the flexible, case-by-case approach that a harmless error analysis usually entails. [Citation.] Here, if read as saying a parent must claim she herself has Indian ancestry, the rule would apply to deny [the mother] relief because she has disclaimed such ancestry. If read somewhat more broadly as saying a parent must claim the child has Indian ancestry, then [the mother] could make that claim based only on knowledge of [the father]'s ancestry, which she has no legal duty or necessary logical reason to know. . . . Furthermore, it is in part the tribe's right to a determination of a child's Indian ancestry, but the tribe is not present, and the agency is charged with obtaining information to make that right meaningful. And we must keep in mind that a collateral attack on a juvenile court judgment based on later discovered information can wreak havoc on a child's stability if the child turns out to have been an Indian child all along. [Citation.] That risk would be greater, and even more unacceptable, if the agency foregoes basic inquiry into potentially meaningful, easily acquirable information. We accordingly decline to apply the rule from cases such as In re A.C. here." (In re Benjamin M., supra, 70 Cal.App.5th at p. 745.)
This case somewhat differs from the above cases as the record shows that some inquiry was made by the Department, and Aunt1 denied Indian ancestry. Further, Father had the opportunity to provide the Department with information regarding his Indian ancestry but chose to file a blank form. Father has failed to show that paternal grandmother could have provided any meaningful information regarding Indian ancestry. On this record, to allow remand for further inquiry, without any evidence that there was Indian ancestry, "would be wasteful and a mere delaying tactic to require the trial court and the social services agency to go through the full inquiry process." (A.C., supra, 65 Cal.App.5th at p. 1071.)
We find that the Department adequately completed its initial inquiry into Minor's Indian ancestry as required by section 224.2, subdivision (b), and that any conceivable failure to inquire did not result in prejudice or a miscarriage of justice.
DISPOSITION
The juvenile court's order terminating Father's parental rights to Minor are affirmed.
We concur: McKINSTER Acting P. J., CODRINGTON J.