Opinion
A160797
05-14-2021
In re T.W. et al, Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD19-3237, JD19-3237A)
T.R. (Mother) appeals orders of the juvenile court terminating her reunification services with T.W. (Son) and finding that Son and T.W. (Daughter) are not Indian children. She contends that her trial counsel rendered ineffective assistance, that the juvenile court disregarded the dual status requirements of section 241.1 of the Welfare and Institutions Code, that the evidence does not support the juvenile court's findings, and that the requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.) were not satisfied. Respondent San Francisco Human Services Agency (the Agency) concedes error under ICWA. We agree as to ICWA, and shall conditionally remand the matter for ICWA compliance. We reject Mother's other contentions, either on the merits or because they have been rendered moot by Son's recent eighteenth birthday.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We are familiar with this case through our recent review of Mother's challenge to the juvenile court's jurisdictional and dispositional orders. (In re T.W. (Dec. 2, 2020, A159506) [nonpub. opn.] (T.W. I).) We will not repeat in detail the facts we discussed in that opinion. Daughter was over the age of 18 at the time of the orders under appeal, and the only issue pertinent to her in this appeal is that of ICWA compliance.
We take judicial notice of the record and our opinion in T.W. I. --------
Briefly, as we explained in T.W. I, the Agency filed a petition on behalf of Son and Daughter on September 13, 2019, when Daughter was 17 years old and Son was 16 years old. The evidence showed the family's household was marred by violence and verbal abuse; on one occasion, Son and Daughter were involved in a physical altercation in which Mother also took part; two of the altercations with Son led to walls being damaged; and on one occasion Son pulled out a BB gun and threatened to shoot Mother and his older brother. The family's home lacked furniture. Son was placed outside the home.
The juvenile court took jurisdiction over Son and Daughter, finding true allegations that Mother's ability to care for them was impeded due to anger management issues and that she was unwilling to provide care for Daughter (§ 300, subd. (b)), that Son was suffering from serious emotional damage (id., subd. (c)), and that the children's father was incarcerated and unable to arrange care for them (id., subd. (g)). The court ordered reunification services for Mother. In T.W. I, we conditionally reversed the dispositional order for ICWA compliance, directed the juvenile court to correct two clerical errors, and otherwise affirmed the jurisdictional and dispositional orders.
On July 1, 2020, the Agency filed a section 388 petition, asking the juvenile court to terminate reunification services between Mother and Son on the ground that all efforts at reunification services had failed and that Mother inflicted psychological abuse on Son, exacerbating his existing trauma. The trial court ordered a hearing on the request.
The Agency prepared a report for the six-month review hearing, which was originally scheduled for July 9, 2020, explaining that Son began a trial home visit with Mother in early May 2020. During the visit, Mother and Son had conflicts about taking out the trash, doing the dishes, cleaning the house, abiding by household rules, and smoking marijuana in the house. By the end of May, Mother said she wanted Son out of her house and Son said he wanted to move to another placement. Son was moved to another foster placement on June 8, 2020.
The social worker spoke with Mother about her referral to therapy, and Mother said she had her own therapist and psychiatrist, but she would not provide the name. Mother had been referred to anger management classes, but she said she was working with another service provider, Seneca, to help with communication with Son, and she did not think she needed anger management services. She had been referred to parenting classes, but she did not want to participate in services. Mother terminated her services with Seneca on May 29, 2020. Although Mother acknowledged that she used marijuana as a "coping mechanism" and sometimes drank alcohol, she refused drug testing and substance abuse assessment. The Agency had provided a variety of other services, including meeting with Mother and other service providers; arranging a visit between Mother and Son; moving Son to a San Francisco foster home so he could contact Mother; assisting in getting mattresses for Mother and Son; and helping Mother obtain food.
Mother made a Marsden motion for new counsel (People v. Marsden (1970) 2 Cal.3d 118) on July 30, 2020, which the juvenile court denied. On the same date, the court found that ICWA did not apply to Son or Daughter. A contested hearing on both the Agency's section 388 motion and the six-month review hearing was set.
At the August 12, 2020 hearing, Candace Segrove, a protective services supervisor for the Agency, testified that she supervised the social worker on the case, had discussed the contents of the six-month review report with her, had helped edit and sign off on the report, and was personally familiar with the services offered to Mother. She was not aware of Mother having participated in anger management classes, parenting classes, or individual therapy since the report was written. It was her understanding from conversations with the social worker assigned to the case that Son expressed his love for Mother and wanted to have a relationship with her but that he thought it was better for them to remain apart.
Mother testified that she had participated in family therapy and individual therapy through Seneca. She expressed her willingness to participate in a parenting class focused on dealing with teenagers. She testified she was not willing to participate in an anger management class because she had already participated; that she had not participated in the parenting education class to which she had been referred because she "didn't want to"; and that she was unwilling to sign a release to allow the Agency to talk to her therapist, although, somewhat confusingly, she also said she would allow the social worker to verify how often she was going to therapy "without the authorization of release." She acknowledged that during the trial home visit, she had asked to have Son picked up.
The trial court continued the dependency and terminated reunification services for Mother, finding by clear and convincing evidence that the Agency had offered reasonable services to aid Mother in overcoming the problems that led to Son's removal and continued custody and that there was no substantial probability of return within the next six months, and concluding that Mother had made minimal progress toward alleviating the problems leading to placement. It indicated, however, that it would consider reinstating reunification services if Mother was willing to sign a release of information about her therapy and provide proof of participation in a parenting class. The court ordered continued unsupervised visitation between Mother and Son. As pertinent here, Mother timely appealed the July 30 and August 12, 2020 orders.
DISCUSSION
I. Mootness—General Principles
During the pendency of this appeal, Son reached his eighteenth birthday. At our request, the parties have submitted supplemental briefing as to whether any of the issues before us are now moot. The critical factor in deciding whether an appeal in a dependency case is moot is whether we can provide effective relief if there was reversible error. (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
The issues Mother raises are: (1) whether her counsel rendered ineffective assistance; (2) whether the juvenile court followed the requirements applicable to minors who may be subject to the juvenile court's jurisdiction both as a dependent and as a ward (§§ 241.1, 300, 601, 602); (3) whether substantial evidence supports the juvenile court's findings and whether it abused its discretion when it terminated services; and (4) whether the Agency's ICWA inquiry was adequate.
The Agency acknowledges that the question Mother raises as to compliance with ICWA is not moot because California's definition of an Indian child extends to those under 21 years of age. (§ 224.1, subd. (b)), but it contends that all other issues are moot because the remedies for any error—reversal with directions for the juvenile court to appoint a new attorney, to determine whether it is Son's best interest to be treated as a dependent or as a ward, or to order continued reunification services—are no longer available. Mother contends none of the issues are moot.
II. Termination of Reunification Services
We first consider whether the Mother's challenge to the order terminating reunification services as to Son—based on her contentions that the evidence does not support the order and that the juvenile court abused its discretion—is moot. A parent of a child over the age of three at the time of removal is normally entitled to 12 months of family reunification services. (§ 361.5, subd. (a)(1)(A).) But, as the Agency points out, this presumption does not apply where a minor has reached the age of 18, because such a person is a legal adult who cannot be returned to the parent's physical custody. (In re K.L. (2012) 210 Cal.App.4th 632, 642; see In re J.C. (2014) 222 Cal.App.4th 1489, 1493.)
Mother argues her challenge is not moot because reunification services may still be available after a child's eighteenth birthday if the child becomes a nonminor dependent. Section 361.6 allows the court to order reunification services to continue for a nonminor dependent if the dependent and parents are in agreement, and if the court finds that services are in the nonminor dependent's best interests and that there is a substantial probability the nonminor dependent will be able to reside safety in the parent's home by the next review hearing. (§ 361.6, subd. (a).)
We are not persuaded that the potential for reunification services under the nonminor dependent statutory scheme means we can provide effective relief if we conclude the juvenile court committed reversible error when it terminated services. There is no presumptive right to reunification services once a child turns eighteen, and the standards the juvenile court would apply in considering whether to grant them differ from those applicable when the child is still a minor, at a time that there is a presumptive entitlement to reunification services. (In re K.L., supra, 210 Cal.App.4th at pp. 641-642.) In particular, one of the requirements for reunification services with a nonminor is that the dependent and the parent agree to them, and the record here suggests that, while Son loves Mother and wants to continue to see her, he does not wish to reunify with her. (§ 361.6, subd. (a).) Another requirement is that the court find a substantial probability the nonminor will be able to live safely with the parent by the next review hearing, and here the juvenile court expressly found that—at least under the facts then before it—return would create a substantial risk to Son's safety or well-being and there was no substantial probability of return within the next six months. (Ibid.) Bearing in mind Son's current age, no resolution of this appeal could result in the trial court continuing reunification services under the standards in effect at the time it made the challenged ruling, and we cannot on this record direct it to do so under the standards applicable to nonminor dependents.
We must conclude, therefore, that we cannot grant effective relief as to Mother's challenge to the termination of reunification services. Nothing we say, however, is intended to preclude her from seeking services under section 361.6, should she conclude she is eligible for them under the applicable standards. (See In re K.L., supra, 210 Cal.App.4th at p. 643.)
III. Dual Status Requirements
The Agency also contends that the question of whether the juvenile court complied with section 241.1's requirements for minors who come within the descriptions of both section 300 (as a dependent) and section 601 or 602 (as a ward) is moot. As the Agency notes, section 241.1, subdivision (a) establishes procedures for determining which status—ward or dependent—will best serve the best interest of a minor, and Son is no longer a minor. But, as Mother points out, section 241.1 expressly contemplates that a county's probation department and child welfare department should develop protocols for coordinating the assessment of dual status minors, and those protocols must include processes for determining which agency and court should supervise a nonminor dependent. (§ 241.1, subds. (b)(1) & (b)(4)(B) & (C).) It is thus not clear that we would be unable to grant effective relief on this issue if we found error.
Whether or not Mother's challenge under section 241.1 is moot, it is barred by the doctrine of law of the case, which "dictates that an appellate court's holding, on a rule of law necessary to an opinion, must be adhered to throughout the case's subsequent progress in the trial court and on subsequent appeal, as to questions of law (though not as to questions of fact)." (City of West Hollywood v. Kihagi (2017) 16 Cal.App.5th 739, 749; see People v. Boyer (2006) 38 Cal.4th 412, 443.) Mother's argument is expressly a "renew[al]" of one she made in T.W. I. (Capitalization omitted.) But in T.W. I (an opinion issued after Mother filed her opening brief in this appeal), we rejected Mother's argument, both on the ground that the issue was forfeited by her failure to raise it before the juvenile court and because there was no indication the juvenile court had adjudged, or intended to adjudge, Son a ward of the court pursuant to section 601 or 602. Mother points to no new facts that would change our views. While we do not fault Mother for raising the issue again before we resolved T.W. I, we will not revisit our earlier conclusion in the absence of new factual information bearing on the issue.
IV. Ineffective Assistance of Counsel
Mother also contends her counsel rendered ineffective assistance. The Agency argues this issue is moot because the remedy would be reversal of the order terminating reunification services and a remand for appointment of new counsel, and, as we have already concluded, there would be no purpose to reversing that order now that Son is over the age of 18. But Mother's argument that her counsel was ineffective is based not only on the order terminating services but also on her counsel's failure to develop facts showing that Son was a ward of the court so as to trigger application of section 241.1. Because it not clear that the section 241.1 issue is moot, we will consider Mother's argument about her counsel's performance.
On July 30, 2020, before the contested hearing on the Agency's section 388 petition and six-month review hearing, Mother brought a Marsden motion for new appointed counsel. Mother argued her counsel was not representing her adequately, saying that, in connection with an earlier hearing that was the subject of the appeal in T.W. I, her counsel did not present documents that showed Mother had not physically abused her children; saying her counsel had not discussed the case with her; and complaining that counsel violated her privacy by speaking with the social worker. In response, Mother's counsel said the documents Mother was referring to were in the court file, that Mother disputed the allegations of abuse at an earlier hearing, that it was common for parents' attorneys to speak to social workers in preparation for cross-examination, that she did not give the social worker any information, and that she had spoken with Mother multiple times. Counsel also stated—incorrectly—that the attorney who represented Mother before this court in T.W. I had filed a brief raising no issues and that this court had found no issues to dispute. The juvenile court denied the Marsden motion, stating that it accepted counsel's version of her conversations with Mother, that counsel had represented her competently, and that "as the appellate attorney found, there's no issues here of misrepresentation in terms of not presenting physical evidence that was in fact in the file."
On appeal, Mother points out that her trial counsel's assertion that her appellate counsel had found no issues to brief in T.W. I is inaccurate, as in fact Mother raised multiple issues in that appeal; she also notes that her trial counsel's statement that this court found no issues on appeal is belied by the fact that at the time of the July 30, 2020 hearing, we had not yet issued our opinion in T.W. I. In the absence of these inaccurate assertions, she contends, the juvenile court would have inquired further into Mother's concerns; and, she argues for the first time in her reply brief, competent counsel would have inquired into whether Son had been adjudged a ward of the court so as to trigger the requirements of section 241.1 and would have obtained information from the Agency regarding its view of Mother's participation in reunification services.
A claim of ineffective assistance of counsel is normally raised by a petition for writ of habeas corpus. (In re N.M. (2008) 161 Cal.App.4th 253, 270.) That is because "[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial," although in unusual cases "the incompetency of counsel will be so gross as to jump out of the record and require no supplemental explanation." (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) In such a case, where there is no satisfactory explanation for counsel's actions, the matter can be reviewed on direct appeal. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) To show ineffective assistance, Mother must demonstrate both that her counsel's representation fell below an objective standard of reasonableness and that she suffered prejudice, that is, that it is reasonably probable she would have achieved a more favorable result in the absence of counsel's deficient performance. (In re N.M., at p. 270.)
Mother has not met her burden on appeal to show ineffective assistance of counsel. On record before us, nothing but speculation suggests Mother would have achieved a more favorable result had counsel been more familiar with her appeal in T.W. I or had counsel conducted further investigations into Son's status or anything else. We are deeply troubled that counsel inaccurately represented to the trial court events in the prior appeal, but our decision in T.W. I ultimately found substantive error only as to ICWA inquiry, and there is no reason to think the result in the proceedings now before us would have been any different if the court or Mother's counsel had examined the issues raised in that appeal. And nothing in the record indicates Son had been adjudged a ward, so it is sheer speculation to suggest trial counsel would have learned anything that might have changed the result if she had inquired further into the matter. Nor, for that matter, is there anything to show that counsel did not conduct such inquiries, or that her inquiries into the Agency's views of Mother's participation in services were inadequate. We accordingly reject Mother's contention that she was deprived of the effective assistance of counsel.
V. ICWA Inquiry
Mother contends the Agency did not carry out an adequate inquiry into Son and Daughter's Indian ancestry. In a dependency case, ICWA imposes a requirement that the Agency inquire of all involved persons, including extended family members, whether a child may be an Indian child. If the initial inquiry creates a reason to believe the child is an Indian child, the Agency must conduct further inquiry, and, if the further inquiry results in reason to know the child is an Indian child, the Agency must comply with formal notice requirements. (In re D.S. (2020) 46 Cal.App.5th 1041, 1052, citing §§ 224.2, subds. (a), (b), & (e), 224.3; see Cal. Rules of Court, rule 5.481(a)(4).)
At the outset of this case, Mother completed a form indicating she might have Indian ancestry through the Apache and Choctaw tribes, and named her great-grandmother as the source of that ancestry. When a social worker spoke with her, Mother refused to disclose anything further, saying she had given the information to the juvenile probation department and the social worker should obtain the information from them. There is no indication that the Agency contacted juvenile probation or asked any other maternal relatives about possible Indian ancestry. Nevertheless, on July 30, 2020, the juvenile court found that ICWA's notice requirements had been satisfied and that ICWA did not apply.
Mother contends, and the Agency concedes, that this inquiry was insufficient to satisfy the requirements of section 224.2. We agree. The ordinary remedy for such an error, as the Agency recognizes, is a conditional reversal and a limited remand for compliance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 711.) In supplemental briefing, however, the Agency suggests such a remand is no longer necessary because the juvenile court recently found, after a more extensive inquiry produced no additional evidence of Indian ancestry, that Daughter did not appear to be an Indian child. But the March 29, 2021 order at which that finding was made is not before us and Mother has had no opportunity to challenge it on appeal. We shall adhere to our usual practice when faced with this sort of ICWA error and order a limited remand.
DISPOSITION
The July 30, 2020 and August 12, 2020 orders are conditionally reversed and the case is remanded to the juvenile court with directions to hold a hearing to determine whether any further action pursuant to ICWA is necessary. If the court determines that ICWA's requirements have been satisfied, the orders shall be reinstated. In all other respects, the orders from which Mother has appealed are affirmed.
TUCHER, J. WE CONCUR: STREETER, Acting P. J.
BROWN, J.