Opinion
D081444
04-28-2023
In re E.F., a Person Coming Under the Juvenile Court Law. v. R.F., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from order of the Superior Court of San Diego County, No. NJ15535B Michael J. Imhoff, Judge. Reversed in part, affirmed in part, with direction.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
MCCONNELL, P. J.
After R.F. (Mother) failed to reunify with her son, E.F., and put him at risk of danger during a trial visit, the San Diego County Health and Human Services Agency (Agency) removed E.F. a second time and placed him in a children's center. Mother brought a request under Welfare and Institutions Code section 388 requesting the court return E.F. to her care or, in the alternative, to allow unsupervised visits. The court denied her placement request without considering her alternative request for unsupervised visitation. Mother appeals contending the court abused its discretion in failing to consider her visitation request without a hearing. She also asserts the Agency and the court failed to comply with their duties of inquiry under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA).
Further undesignated statutory references are to the Welfare and Institutions Code.
The Agency concedes, and we agree, the juvenile court erred in failing to consider the visitation request. The Agency also concedes its ICWA inquiry remains incomplete, but it contends a section 388 order is not a proper means to challenge the ICWA issue. We agree with the Agency on both issues. We, therefore, reverse the order in part as to the visitation request, but affirm the order in all other respects. We decline to consider the ICWA issue because we lack jurisdiction to do so. We expect, however, that on remand the Agency and the court will comply with their ongoing duties under ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
We previously considered an appeal concerning E.F.'s half-siblings. (In re. E.F. (Nov. 18, 2022, D080342) [nonpub. opn.].) Although the appeal did not reach E.F. as a dependent of the court, we take judicial notice of our opinion and draw from it the facts necessary to provide background and context.
A
Detention and Reunification Period
In June 2019, the Agency received a report that Mother was physically abusing E.F. and his half-siblings. Mother reportedly "beat" her children with belts and extension cords, leaving them with bruises, lesions, and loop marks. In a conversation with the social worker in July, Mother denied physically disciplining the children and claimed she was only" 'yelling and cussing.'" She said E.F. was" 'outright defiant'" and" 'needed his ass whooped multiple times.' "
The Agency filed a petition under section 300, subdivision (a) on behalf of the children. The juvenile court issued protective custody warrants for the children and, in October 2019, declared E.F. a dependent of the court.
Mother received 18 months of reunification services and completed her case plan. In March 2021, the Agency placed E.F. with Mother for a 60-day trial visit. A few weeks later, the Agency received reports that Mother got into an altercation with a neighbor, yelled at her children, "things were being thrown around, and the children were overheard crying." In April, the Agency again removed E.F. and his siblings from Mother and filed a supplemental petition under section 387.
Section 387 authorizes a juvenile court to change or modify a previous placement order by removing a child from the physical custody of a parent. (In re Brianna S. (2021) 60 Cal.App.5th 303, 312.) To remove the child, "the court need only find that the [parent] is 'no longer able to provide the . . . child a secure and stable environment.'" (Id. at p. 313.)
B
Placement and Proceedings Following the Second Removal
For the next year, E.F. had four placements-twice at a children's center and twice with approved foster families. His placements in the foster families were unsuccessful because he was "antagonistic and physically aggressive to other children" and animals in the homes. At the children's center, E.F. had over 20 incident reports involving physical altercations, verbal arguments, inappropriate sexual behaviors, and assaults on staff. The Agency attempted to place E.F. with other approved foster families, but no families were willing to take him due to his "emotional and behavioral challenges."
In February 2022, mental health therapists assessed that E.F. "continued to struggle with anger control, anger outburst, hostility, opposition, and unsafe behaviors." They diagnosed him with "adjustment disorder with mixed disturbance of emotions and conduct" and "reactive attachment disorder of childhood." They recommended placing E.F. in a short-term residential therapeutic program (STRTP). The Agency filed a second section 387 petition in April 2022 to incorporate this recommendation.
At a hearing on the supplemental petition that month, the court asked Mother about her Native-American heritage. Mother replied, "I have limited Native. I don't know what my percentage is, so I can't really say that I'm involved with the Native-American community." When the court asked if Mother knew what tribe she might be connected to, she responded, "I wouldn't even know. I just know I'm partial Indian." Mother said her uncle could have more information on her Native American ancestry and she would provide his contact information to the social worker. The court deferred its ICWA finding to the next hearing and authorized E.F.'s detention at a STRTP facility. That same day, E.F. was placed in the treatment facility and began receiving therapy.
The contested adjudication and disposition hearing took place in May 2022. The juvenile court reaffirmed "the 7/24/19 finding that [ICWA] does not apply in this case." And although the court admitted into evidence the April 2022 detention report and May 2022 addendum report, neither detailed what effort the Agency made to inquire of Mother's uncle or any relatives about E.F.'s Native American ancestry.
Meanwhile at the STRTP facility, E.F. made "some progress" "working through some of his history and learning appropriate coping and communication skills." The court-appointed special advocate opined the facility was "the best place" for E.F. given his progress. The advocate encouraged Mother to focus on supporting E.F.'s participation in therapy, but the advocate had "yet to see [Mother] do this."
E.F. had weekly visits with Mother, which alternated between supervised in-person and virtual visits. Despite a four-hour drive to Mother's home for the in-person visits, E.F. said he enjoyed the visits and wanted them to continue. He also wanted to live with Mother, and she wanted him in her care. When the court-appointed special advocate asked E.F. about "anything good that has happened in the past week," E.F. referred to his recent in-person visit with Mother.
In August 2022, Mother said she was residing at a residential treatment center designed to assist with recovery from mental health and substance abuse. But she declined to provide any further information to the Agency. At a child family meeting later, the Agency reminded Mother that the case was not in reunification after she stated E.F.'s placement in STRTP was temporary and he was supposed to return to her care.
At the post-permanency planning review hearing on November 2, 2022, the juvenile court observed E.F.'s behaviors were improving and adopted the Agency's recommendation to continue E.F.'s placement in the STRTP facility. The court again found ICWA not applicable to the proceeding.
C
Section 388 Request
Two weeks later, Mother filed a section 388 request to place E.F. with her. Alternatively, she requested expanded visitation to include unsupervised visits. Mother alleged unsupervised visitation would allow her to bond with E.F. and to use the tools she learned at the residential treatment center. She attached a letter from a counselor at the treatment center stating Mother had developed "some insight" into her mental health issues, including understanding of "warning signs" and "triggers." The counselor wrote Mother "has demonstrated the desire for change and is actively working towards that goal." Mother attended classes on domestic violence, anger management, mental health awareness, parenting, relapse prevention, among others, and was working on her second treatment plan.
On November 17, 2022, the court summarily denied her request for an evidentiary hearing on the matter. It found Mother failed to present new evidence or "carried her burden as to changed circumstances or best interests as she does not identify facts that [E.F.] has made sufficient progress at his STRTP to matriculate to a lower level of care." The ruling did not mention Mother's alternative request for expanded visitation.
Mother appealed.
DISCUSSION I.
Section 388 Petition
A. Applicable Law
Under section 388, a parent may petition to modify a prior order (1) "upon grounds of change of circumstance or new evidence" and (2) if "the best interests of the child . . . may be promoted by the proposed change of order." (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a), (d).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) "A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
"[T]he change in circumstances must be substantial" (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223), and there must be a showing that "the problem that initially brought the child within the dependency system [has been] removed or ameliorated" (In re A.A. (2012) 203 Cal.App.4th 597, 612). We review a denial of section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)
B. Analysis
Mother contends the juvenile court erred in denying her expanded supervision request "without at least considering whether her petition made a prima facie showing that unsupervised visits were in [E.F.]'s best interests" and the related "changed circumstance." Mother asks us to review the record and conclude that she has "made this showing" and "remand with direction for the court to hold an evidentiary hearing on her [expanded supervision] request."
The Agency concedes "the juvenile court neglected to consider the mother's alternative request for expanded visitation," but counters that it is "not the proper function" of this court to make a prima facie finding in the first instance. The Agency instead asks us to "reverse and remand with directions for the juvenile court to consider whether mother has made a prima facie showing on her request for unsupervised visits sufficient to warrant an evidentiary hearing." We conclude the Agency has the better argument.
The juvenile court erred in not considering Mother's expanded visitation request and thus made no prima facie finding on the request. We decline to make a prima facie finding in the first instance. "An appellate court is a reviewing court, and (except in special cases where original jurisdiction is conferred upon it) not a trial court or court of first instance." (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 844.) Moreover, "[t]he juvenile court is vested with' "very extensive discretion in determining what will be in the best interests of a child" '" and to grant or deny a section 388 motion. (In re B.S. (2012) 209 Cal.App.4th 246, 254; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) Consistent with the principle of appellate review, we need not prematurely encroach upon the juvenile court's discretion on this issue.
II.
ICWA Inquiry
A. Applicable Law
To determine whether ICWA applies to a dependency proceeding, the juvenile court and the Agency have "an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . may be or has been filed, is or may be an Indian child." (§ 224.2, subd. (a); see In re Isaiah W. (2016) 1 Cal.5th 1, 9, 11-12 (Isaiah W.).) At the initial contact with a minor and his family, the Agency must ask all involved persons whether the child may be an Indian child. (§ 224.2, subd. (b); § 306, subd. (b).) If that initial inquiry creates a "reason to believe" an Indian child is involved, the Agency" 'shall make further inquiry regarding the possible Indian status of the child,'" which includes, but not limited to, "interviewing the parents and extended family members" and contacting relevant tribes and government agencies. (In re D.S. (2020) 46 Cal.App.5th 1041, 1049, 1052.) The Agency's filings "must include 'a detailed description of all inquiries, and further inquiries it has undertaken, and all information received pertaining to the child's Indian status.'" (In re Dominick D. (2022) 82 Cal.App.5th 560, 566.)" 'We review a court's ICWA findings for substantial evidence.'" (Id. at p. 567.)
An" 'Indian child'" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4); see § 224.1, subd. (a) [adopting federal definition].)
B. Analysis
Mother contends the record does not show the Agency fulfilled its ICWA inquiry obligations by contacting the maternal relatives, including the maternal uncle, about the family Native American ancestry. She therefore asks that we vacate the juvenile court's ICWA finding and remand for compliance.
The Agency claims that, while this appeal was pending, it inquired of the maternal grandparents and aunts about the family Native American ancestry. It sent letters to three different Cherokee tribes to inquire about E.F.'s ancestry. The Agency concedes its "efforts are ongoing" and it has yet to fully complete its ICWA inquiry. Despite its concession, the Agency contends Mother's appeal from a modification order is not a proper vehicle to raise the ICWA issue because the order "was not premised on any ICWA finding." We agree.
Pursuant to the Agency's request, we take judicial notice of a certified copy of the addendum report filed with the juvenile court in April 2023 only for context. (Evid. Code, § 452, subd. (d) [allowing judicial notice of a record of any court of this state]; Cal. Rules of Court, rule 8.155(a)(1)(A) [permitting the reviewing court to augment the record with "[a]ny document filed or lodged in the case in superior court"]; In re A.B. (2008) 164 Cal.App.4th 832, 839 [taking judicial notice of certified copies of filings from the superior court for a limited purpose].)
In re L.D. (2019) 32 Cal.App.5th 579 (L.D.)-where a mother appealed an ICWA noncompliance issue from a gun surrender order-is instructive. The appellate court dismissed the appeal for lack of jurisdiction because the gun surrender order was not "premised on any ICWA finding." (Id. at pp. 581, 583.)
The L.D. court distinguished Isaiah W., supra, 1 Cal.5th 1. In Isaiah W., the Supreme Court held a parent who failed to timely appeal an order that included an ICWA finding may still challenge the finding from a later order terminating parental rights. (Isaiah W., at p. 6.) The L.D. court explained an order terminating parental rights, as the one in Isaiah W., "' necessarily subsumed a present determination of ICWA's inapplicability,'" and the validity of which" 'is necessarily premised on a current finding by the juvenile court' regarding compliance with ICWA's notice requirement." (L.D., supra, 32 Cal.App.5th at p. 583, quoting Isaiah W., at pp. 10, 15.) The L.D. court thus concluded "the reasoning of Isaiah does not extend to the facts presented here," where ICWA was not implicated in the gun surrender order. (L.D., at p. 583.)
Similarly here, Mother did not appeal the November 2, 2022 order finding that ICWA was not applicable. She instead appealed only the modification order, which, as in L.D., is not "premised on any ICWA finding." (L.D., supra, 32 Cal.App.5th at p. 583.)"' "Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from." [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.'" (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Because Mother's notice of appeal is limited to the modification order, we lack jurisdiction to consider the ICWA issue.
Even so, we are mindful the juvenile court and Agency have an "affirmative and continuing duty" (§ 224.2, subd. (a)) to inquire about E.F.'s Native American ancestry, and accept the Agency's concession it still has not fulfilled that duty. We expect the Agency to adequately complete its ICWA inquiry on remand.
DISPOSITION
The order denying Mother's section 388 request is reversed in part and the matter is remanded to the juvenile court with direction to consider the request for expanded visitation. In all other respects, the order is affirmed.
Mother and the Agency have submitted a joint stipulation for issuance of an immediate remittitur pursuant to California Rules of Court, rule 8.272(c)(1). Accordingly, the remittitur shall issue forthwith.
WE CONCUR: O'ROURKE, J. DO, J.