Opinion
E073982
04-09-2020
In re A.R., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.F., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J271503 & J271504 & J271505 & J271506) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed in part; reversed in part with directions. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant paternal grandmother R.F. (Grandmother) appeals the grant of a Welfare and Institutions Code section 388 petition filed by San Bernardino County Children and Family Services (Department) terminating her legal guardianship.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Grandmother had been appointed the legal guardian of M.C., Ar.R., Av.R. and E.R.J. (collectively, the children) at a section 366.26 hearing involving the children's' mother, M.G. (Mother); the father of Ar.R., Av.R. and E.R.J. (Father); and M.C.'s father. While the children were living with Grandmother after the legal guardianship was established, she allowed Father to live with her. It was discovered that Father had been molesting the children' cousin. Grandmother had allowed Father into the home despite the dependency proceedings and knowledge he had committed a prior sexual offense against a minor. The Department filed supplemental petitions pursuant to sections 342 and 387, and a section 388 petition seeking to terminate the guardianship. The juvenile court granted the section 388 petition, denied reunification services to Grandmother, and ordered that Grandmother's legal guardianship be terminated.
On appeal, Grandmother contends that (1) the juvenile court erred by finding that proper notice had been given under the Indian Child Welfare Act (ICWA), requiring limited remand for proper noticing; and (2) the juvenile court erred by refusing to grant reunification services to Grandmother finding the reunification bypass provision of section 361.5, subdivision (b)(6), applied.
FACTUAL AND PROCEDURAL HISTORY
A. ORIGINAL DETENTION
Mother had four children: Ar.R. (male, born Sept. 2014); E.R.J. (male, born Feb. 2009); M.C. (female, born April 2006); and Av.R. (female, born June 2011). E.R., (Father) was the father of Ar.R., Av.R. and E.R.J.; and A.R. was M.C.'s father.
The family came to the attention of the Department when it was reported that Mother had picked up Av.R. very late from school on several occasions. On June 6, 2017, a social worker went to Mother's home. Mother appeared disheveled and groggy. Mother had no explanation for failing to pick up Av.R. Mother had previously been arrested for drug possession and had court dates set. Mother reported that Father also suffered from substance abuse and was in jail. Mother did not want to go to drug rehabilitation and promised she would try to stop using on her own. No action was taken by the Department.
On June 14, 2017, the social worker returned to the home to check on Mother's progress. When the social worker arrived, Mother, maternal aunt, and maternal grandmother were all present and under the influence. The children were at the house. Mother admitted that she would test positive for methamphetamines. Father was in custody at Salinas Valley Prison.
On June 16, 2017, the Department filed section 300 petitions against Mother, Father and A.R. (original petitions). It was alleged pursuant to section 300, subdivision (b)(1), failure to protect as to Ar.R., E.R.J. and Av.R., that (1) Mother suffered from a substance abuse problem that impeded her ability to parent; (2) Mother suffered from a chronically unstable lifestyle that placed the children at risk of harm and neglect; (3) Father failed to protect Av.R., Ar.R. and E.R.J. from Mother, who was actively engaged in drug activity, and he knew or reasonably should have known that Mother was actively engaged in drug activity; and (4) Father engaged in domestic violence endangering Ar.R., E.R.J. and Av.R. As for M.C., it was alleged pursuant to section 300, subdivision (b), that Mother suffered from a substance abuse problem and had a chronically unstable lifestyle. It was additionally alleged that A.R. failed to protect M.C. from Mother, who was actively engaged in drug activity. It was alleged against Father and A.R. pursuant to section 300, subdivision (g), that they had left their children with no care or support.
The detention hearing was conducted on June 19, 2017. The juvenile court found a prima facie case was established for detention of the children outside the home and placed them with Grandmother.
B. JURISDICTION/DISPOSITION REPORTS AND HEARING
The jurisdiction/disposition report was filed on July 17, 2017. It was recommended by the Department that the juvenile court find the section 300, subdivision (b), and (g), allegations true, and that the children be placed with Grandmother. It recommended reunification services for Mother; no reunifications services were recommended for Father and A.R.
Mother had been interviewed. She admitted to her substance abuse problem and that it impacted her ability to parent the children. Mother first used marijuana at the age of 12 and began using methamphetamine when she was 19 years old. She denied that she ever used drugs around her children. Mother reported that Father wanted the children to be placed with Grandmother. She admitted that Father had hit her in the past. A.R. had never been a part of M.C.'s life.
The children had lived a majority of their lives with Grandmother and the transition to her home was "seamless." Father had been sentenced to four years in state prison on June 16, 2016, due his admission of committing corporal injury on a spouse/cohabitant. A paternity test was conducted and A.R. was the biological father of M.C.
At the jurisdiction/disposition hearing conducted on August 11, 2017, the juvenile court found the allegations in the petition true except for the allegations under section 300, subdivision (g), against Father and A.R. Mother and Father were granted six months of reunification services, and the children were placed with Grandmother. The juvenile court determined that ICWA did not apply, as will be further examined, post.
C. ESTABLISHMENT OF GUARDIANSHIP WITH GRANDMOTHER
On February 8, 2018, the Department filed a status review report. The Department recommended terminating reunification services for Mother and Father, and setting a section 366.26 hearing to establish a permanent plan of guardianship with Grandmother. Father had completed none of his services and had not been in contact with the Department. Mother failed to attend substance abuse programs; she had 11 no-show drug tests.
On March 15, 2018, the review hearing was conducted. Reunification services for Mother and Father were terminated, and the matter was set for a section 366.26 hearing. In its section 366.26 report, the Department recommended that Grandmother be named the legal guardian of the children and the case be dismissed. On July 13, 2018, at the section 366.26 hearing, Grandmother was appointed the legal guardian of the children and the case was dismissed.
D. SUPPLEMENTAL PETITIONS
On August 5, 2019, supplemental petitions pursuant to sections 342 and 387 were filed for the children against Mother, Father and Grandmother (supplemental petitions). It was alleged pursuant to section 300, subdivisions (b), and (d), for Ar.R., E.R.J. and Av.R. that Grandmother had failed to protect them because Father had sexually abused the children' three-year-old cousin, Jane Doe (Doe), putting the children at risk of similar abuse. It was further alleged under section 300, subdivision (g), that Mother's whereabouts were unknown. It was alleged pursuant to section 300, subdivision (g), for M.C. that Mother and A.R. had left her with no provision for support.
According to the detention report attached to the supplemental petitions, on July 28, 2019, the Department received a referral on behalf of the children who were residing with Grandmother. Doe was also residing in Grandmother's home. Father was reported to be living in the home with the children and Grandmother. He was an active gang member. Drugs were being sold from the Grandmother's home and it was a known gang hangout. Father had just been released from prison on an assault charge for beating up his girlfriend. The Department reported that Father had been convicted of prior unlawful sexual contact with a minor based on having sexual relations with Mother when she was a minor.
It was reported by Doe that defendant had "put his finger in [her] butt" and he kissed her on her vagina. Doe demonstrated to the reporting party how Father performed oral sex on her. She reported that it felt good. While demonstrating to the reporting party, Doe "put a marker and fingers in her vagina."
A social worker accompanied by San Bernardino County Sheriff's deputies, went to Grandmother's home. Father was present. Grandmother insisted that Father only visited at the home and that he was always supervised. Grandmother denied that there was any sexual abuse committed by Father. Grandmother did report to the social worker sexualized behavior exhibited by Doe including that she would "hump stuffed animals" on random occasions. The sexualized behavior began in April 2019. Doe had been moved to her maternal grandmother's home.
The children were interviewed by the social worker. M.C. denied that Father lived in the home. M.C. had not seen Father sexually abuse Doe or any of the children. She described Doe as being a " 'nasty little girl.' " She had observed her kissing and humping stuffed animals. M.C. would tell her to stop and Doe would tell her to leave her alone. Av.R. denied any sexual abuse had occurred involving herself, Doe and her siblings. Ar.R. only reported that Doe did not like him. E.R.J. reported he had observed Doe hump a pillow. He denied he had been sexually abused.
The following day, another referral to the Department was made for the children. It was reported that all the children had bug bites, marks on their legs and lice; and that Ar.R. had "a branded skull on his left leg." The social worker went to the Grandmother's home and observed the children had scratches on their legs which they claimed to have obtained from playing outside. Ar.R. had a small bruise on his face, which he claimed came from falling off his scooter. It was further reported that Grandmother had advised the children to say nothing about the sexual abuse allegations and they would be rewarded with a new videogame console. The children were detained and removed from Grandmother's home.
The detention hearing on the supplemental petitions was held on August 6, 2019. The children were detained from Grandmother and placed in foster care.
E. JURISDICTION/DISPOSITION REPORT FOR SUPPLEMENTAL PETITIONS
The Department recommended that the children be placed in out-of-home care. It further recommended that no reunification services be offered to Grandmother, Father, Mother and A.R. M.C. was now 13 years old; E.R.J. was 10 years old; Av.R. was 8 years old; and Ar.R. was 4 years old. The children had been placed in a foster home.
Grandmother had been interviewed by the Department on August 15, 2019. Grandmother said the accusations of sexual abuse were false. She insisted that Father only came to visit one time each week and visits with the children occurred outside. Grandmother acknowledged that defendant had been convicted of raping a minor, which was Mother. Doe never told Grandmother that anything had happened with Father; she did not believe her son was capable of such acts. Grandmother denied that Father was ever alone with Doe. Grandmother believed that someone told Doe to say that Father abused her.
The children were interviewed by the Department a second time on August 15, 2019. Ar.R. reported that Father lived with them at Grandmother's house. E.R.J. insisted that no sexual abuse occurred between Father and Doe because paternal aunt was always home. He reported that Father did not live with them. M.C. did not believe that Father abused Doe. Father was not living at Grandmother's house.
Given Grandmother's refusal to acknowledge the sexual abuse, the Department was recommending that she not be given reunification services and that her legal guardianship be terminated.
Attached to the jurisdiction/disposition report was the crime report from the San Bernardino County Sheriff's Department regarding the investigation into the sexual abuse committed by Father against Doe. The parties did not object to the report being included with the jurisdiction/disposition report.
According to the crime report, Doe was three years old. Doe's maternal aunt had been the reporting party. Doe had been staying with the maternal aunt. The maternal aunt gave Doe a bath and then put some lotion on her hands after the bath to put on her body. Doe rubbed the lotion on her vagina and put her fingers inside her vagina. When the maternal aunt asked Doe why she was doing that, she explained that Father did that to her. Doe reported to the maternal aunt that Father had put his finger inside of her and that he kissed her on the vagina. Doe reported she had told Grandmother and Grandmother "kicked [Father] out." Doe was interviewed by a sheriff's deputy. She reported that Father had kissed her mouth and tongue; he saw her naked and he touched her butt. He was "mean" and "nasty."
Grandmother was contacted by sheriff's department on July 28, 2019, and August 1, 2019. Grandmother reported she had observed Doe rub on her vagina over her clothes and one time in the bath when she was naked. She also thought Doe had tried to stick a marker up her vagina. She also had seen her rubbing a stuffed animal on her vagina and grinding her vagina on a pillow. Father was never alone with Doe and only visited one time each week. She denied that she tried to bribe the children by offering them a new videogame console if they did not disclose the sexual abuse.
Grandmother was administered a polygraph test. She failed the polygraph test as to her knowledge of Father touching Doe's vagina. After the test, she was again interviewed at the sheriff's department. She was upset that Father kept coming to her house and was aware he was an active member of West Side Verdugo. She did not know what to do because she was afraid of gang retaliation. Grandmother then disclosed that Father had given Doe a bath. Grandmother walked in, but she did not see anything of a sexual nature. She yelled at him and told him to leave. After this, Doe began exhibiting sexualized behaviors.
Doe had a physical examination and there was no obvious signs of sexual abuse. In her child assessment interview, Doe volunteered that Father touched her butt with his mouth. Later in the interview she said that Father had done nothing to her. Doe at times was playful and other times defiant, refusing to listen to directions.
F. SECTION 388 PETITION
The Department filed section 388 petitions on September 12, 2019 for the children. The Department alleged that Grandmother had been appointed at a section 366.26 hearing. The Department alleged that Grandmother allowed Father to be around the children even though she was aware of his criminal history and the dependency case. He molested Doe while in Grandmother's home. The Department sought to terminate the legal guardianship. Grandmother should also be denied services because she "steadfastly" denied that Father had abused Doe. She also allowed Father to live with her. Her lack of protectiveness and denial demonstrated that it was not in the children' best interests for her to receive reunification services and the guardianship should be terminated.
G. COMBINED SECTION 388 PETITION AND JURISDICTION/DISPOSITION HEARING
On October 17, 2019, the juvenile court conducted both the hearing on the section 388 petition and the jurisdiction/disposition hearing on the supplemental petitions. The Department requested that the juvenile court take jurisdiction and remove Grandmother as the legal guardian; grant the section 388 petition; and order a permanent plan of placement in foster care with a permanent plan of placement with a willing relative.
Counsel for Grandmother objected to her removal as legal guardian and that she not be offered reunification services. The accusations were against her son and it would be difficult for her to accept that he could possibly commit these acts. Further, she finally admitted at the police station that she was scared and that is why she had lied. Reunification services would give Grandmother time to work through her disbelief and accept the truth.
The Department argued that regardless of the new allegation of sexual abuse, Grandmother was aware that Father was a convicted sexual offender based on the crime committed against Mother. Despite this knowledge, Grandmother let Father back into her house and access to the children. Termination of the legal guardianship with Grandmother was in the best interests of the children. The children' counsel agreed that the legal guardianship should be terminated. The lack of protective capacity by the Grandmother could not be repaired with reunification services.
The juvenile court found the section 300, subdivision (b), allegations in the supplemental petitions true. As for M.C., the section 300, subdivision (g), allegation as to A.R. was found true.
The juvenile court found "As to disposition I am going to grant the 388 and find by clear and convincing evidence that it is in the [children's] best interest to terminate the guardianship." It further found, "County Counsel and [the children's] counsel explained very well why services should not be given, why it's not in the best interest for the children to—or for the guardianship to remain. The lack of protective capacity is well demonstrated throughout the CFS reports and the police reports, so I am going to terminate the guardianship and deny services to the guardian."
Reunification services were denied for all parties. The matter was set for a permanency planning review hearing. Care and custody of the children was placed with the Department. The parties were notified that they could file an appeal.
DISCUSSION
A. DENIAL OF REUNIFICATION SERVICES TO GRANDMOTHER
Grandmother contends the juvenile court erred by denying her reunification services. In particular, Grandmother contends there was no substantial evidence that she gave actual or implied consent to the molestation of Doe as required by section 361.5, subdivision (b)(6), the reunification bypass provision. Grandmother in her opening brief did not contest the finding by the juvenile court that she be removed as the legal guardian or that the juvenile court's finding was not in the children' best interests.
The Department counters Grandmother's claim that the juvenile court improperly determined that she was not entitled to reunification services is moot, because she does not also claim that the juvenile court erred by terminating her guardianship both in granting the section 388 petition and the disposition on the supplemental petitions. In the alternative, the Department contends that services were properly denied under section 361.5, subdivision (b)(6).
In the reply brief, counsel for Grandmother admits to not challenging the termination of guardianship, but because reunification services are only given to parents or guardians, a reasonable inference is that the termination of guardianship is also being challenged.
"An appeal may become moot where subsequent events, including orders by the juvenile court, render it impossible for the reviewing court to grant effective relief. [Citations.] ' "An issue is not moot if the purported error in facts impacts the outcome of subsequent proceedings." ' " (In re E.T. (2013) 217 Cal.App.4th 426, 436.) Grandmother insists that her attack on the refusal to grant reunification services impliedly raises the issue of termination of the guardianship. We address the merits of Grandmother's claim and easily reject it.
Grandmother's sole contention on appeal regarding the juvenile court's grant of the section 388 petition is that the juvenile court improperly bypassed services to her pursuant to section 361.5, subdivision (b)(6). Grandmother allowed Father into her house knowing that he was an active gang member and that he had previously been convicted of a sexual offense against a minor. Grandmother initially denied that Father had any part in abusing Doe, despite the obvious signs that Doe had suffered some sort of sexual trauma. Grandmother only admitted knowing about the abuse after she failed the polygraph test. The juvenile court properly determined that the appropriate course of action was to terminate the guardianship and no reunification services were necessary. No other findings were necessary. Grandmother's claim lacks merit.
B. ICWA
Grandmother contends remand is proper because there was no ICWA notice given despite numerous family members claiming membership in the Pala Tribe. The Department concedes that limited remand is necessary for proper ICWA notice to be given.
1. ADDITIONAL FACTUAL HISTORY
On June 19, 2017, when the original petitions were filed, Mother filed an ICWA-020 form stating that she had no known Indian ancestry. She acknowledged in court that she had no known Indian ancestry. On July 20, 2017, Father and A.R. completed ICWA-020 forms and stated they had no Indian ancestry. Both admitted in court that they had no Indian ancestry. The juvenile court concluded that ICWA did not apply and no notice was given.
With the supplemental petitions, Grandmother filed an ICWA-020 form stating that she may have Indian Ancestry in the Pala Tribe. She stated a previous form had not been filed. The Department had family members submit "Family Find" and ICWA inquiry forms. A maternal aunt of the children provided that she may have Indian ancestry in the Pala Tribe. A paternal aunt also filed a form listing Pala under Indian Ancestry. The juvenile court asked Grandmother at the detention hearing on the supplemental petition, "And just like yesterday you indicated Pala Indian ancestry." She responded, "Uh-huh." In the jurisdiction/disposition report for the supplemental petitions, the Department stated that it had given notice to the Bureau of Indian Affairs on August 14, 2019, and to the Pala Band of Missions Indians on August 14, 2019. The Department noted that ICWA may apply. The Department provided recommendations that included that Ar.R., Av.R. and E.R.J. may come under the ICWA provisions and that noticing requirements had been initiated.
At the first hearing on jurisdiction/disposition for the supplemental petitions, the Department noted that "We have ICWA due diligences for [Doe] and the other three children. The Court previously found that ICWA does not apply." The juvenile court responded, "So ICWA is done, at least noticing, so we don't need to delay for that." The juvenile court asked about the ICWA noticing at the jurisdiction/disposition hearing for the supplemental petitions. The Department advised the juvenile court that "There was a prior finding at the .26 that ICWA did not apply." The juvenile court responded, "All right. So find that the [children] do not come under ICWA."
2. ICWA NOTICE
The failure of the Department to give proper ICWA notice can be raised at any time, including on appeal. (In re Isaiah W. (2016) 1 Cal.5th 1, 6, 15.) ICWA was enacted to " 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' " (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) ICWA provides that "'[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 the . . . termination of parental rights to . . . an Indian child shall notify . . . the Indian child's tribe . . . of the pending proceedings and of their right of intervention.' (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger ICWA's notice requirements." (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783; see also In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)
Here, during the original proceedings when Grandmother was appointed guardian, Mother, Father and A.R. submitted ICWA-020 forms denying any Indian ancestry. No notice was given, and the juvenile court concluded that ICWA did not apply. However, when the supplemental petitions were filed, Grandmother and at least two other relatives indicated they may have Indian ancestry in the Pala tribe. The Department apparently determined that it should notice the Pala tribe but then abandoned ICWA notice, advising the juvenile court that it had previously found that ICWA did not apply. While it was true that ICWA was not found to apply when the original petitions were filed, new information was provided when the supplemental petitions were filed, which required that ICWA notice be given.
We agree with both Grandmother and the Department that limited remand is required for the Department to give proper ICWA notice.
DISPOSITION
We affirm the juvenile court order granting the section 388 petition terminating Grandmother's guardianship. The matter is remanded to the juvenile court with directions that it order the Department to comply with the inquiry and notice provisions of ICWA. If, after proper notice, it is determined that any of the children are Indian children and ICWA applies, the tribe may petition the juvenile court to invalidate any juvenile court orders that violated ICWA. If after proper notice, the juvenile court finds that ICWA does not apply, the case can proceed to the permanency planning review.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.