Opinion
A167836
08-14-2023
E.A., Plaintiff and Respondent, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
San Francisco City &County Superior Ct. No. JD22-3320
MARGULIES, J.
E.A. (Father) petitions this court for extraordinary relief of a juvenile court's order denying him visitation. Father contends the juvenile court's finding that visitation would be detrimental was erroneous and the court failed to exercise its discretion as authorized by Welfare and Institutions Code section 361.5, subdivision (f). Additionally, Father argues the San Francisco Human Services Agency (Agency) failed to comply with state laws implementing the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA) when the Agency did not ask the minor's maternal grandmother about possible Native American ancestry. We disagree and deny both the petition and Father's stay request.
All statutory references are the Welfare and Institutions Code.
I.
BACKGROUND
The minor was placed in the neonatal intensive care unit (NICU) for fentanyl withdrawal shortly after birth. The Agency subsequently filed a section 300 petition seeking to detain the minor. The petition alleged both the mother and Father had a long history of substance abuse issues for which they unsuccessfully received treatment in a previous dependency matter. The petition noted the minor's two older siblings were previous dependents of the court as a result of the parents' neglect related to substance abuse issues, the parents failed to reunify, and their parental rights were terminated. Father's whereabouts were unknown at the time the petition was filed.
In the detention report, the Agency noted the social worker met with Father on one occasion at the hospital. This meeting was the only reported contact between Father and the Agency. Father stated he was unaware the mother was pregnant and would never condone her drug use. Father also stated he was homeless and would neither confirm nor deny drug use. However, he admitted to being connected with Team Lily and being referred to HealthRIGHT 360. Father said he would like to be involved in his children's lives but acknowledged not being involved with or visiting the minor's two siblings. Father lost parental rights to the minor's older siblings in 2018 and 2022, and they were subsequently adopted by the maternal grandmother. Both dependency proceedings were based on his substance abuse, domestic violence, neglect, and mental health concerns.
Team Lily is group of professionals operating out of Zuckerberg San Francisco General Hospital that support pregnant and postpartum persons experiencing hardships such as substance abuse disorders.
HealthRIGHT 360 is a community clinic providing a variety of services including detox, substance abuse counseling, and substance abuse testing.
Father was not present at the detention hearing. The court ordered the minor temporarily removed from the care and physical custody of her parents, and approved placement with her maternal grandmother.
The contested jurisdictional and dispositional hearing took place over three days in April and May. Father was in custody and appeared remotely from the San Francisco jail during the first day, did not appear until the conclusion of the second day, and arrived late on the third day. A protective services supervisor with the Agency testified the Agency had no contact with the Father apart from the one meeting with an Agency social worker at the hospital. Father testified on second day of the hearing, during which he admitted to using opioids prior to his recent incarceration. He stated the jail had to administer Suboxone to wean him off the drug. Father also stated he was willing to engage in services for substance use testing and parental support, although he acknowledged receiving referrals for such services from the Agency and not following up on them.
The court took judicial notice of the previous dependency cases involving the minor's two siblings. In its decision, the juvenile court followed the Agency's recommendation and denied reunification services to the parents based on their prior loss of parental rights as to the minor's siblings. (See § 361.5, subd. (b)(10), (11).)
While the juvenile court initially ordered supervised visitation, the court changed its order and denied visitation to the parents after the Agency noted its recommendation of no visitation. The court stated: "I have reread and considered page 16 [of the Agency's report]. I have also looked back at my notes on the matter. [¶] Based on the totality of the circumstances the Court does find the agency has sustained their burden of proof by clear and convincing evidence. For the same reason the court is bypassing the parents, the Court is also making a find[ing] of detriment to the minor's physical and emotional well-being. [¶] . . . [¶] Father has been MIA 90 percent of the time, and so I also find it would be detrimental for him to have visits." The court emphasized the parents' unaddressed substance abuse and mental health issues, which previously led to the removal of the minor's siblings.
Father filed a timely notice of intent to file a writ petition.
II.
DISCUSSION
Father raises two issues in his petition. First, Father contends the juvenile court erred when it denied visitation with the minor after bypassing him for reunification services. Father also claims the juvenile court's detriment finding was erroneous. Second, Father argues a remand is necessary because the Agency failed to comply with California laws implementing ICWA.
A. Juvenile Court's Visitation Order
Father contends the juvenile court misapplied the law and failed to exercise its discretion when it found visitation would be detrimental to the minor after denying reunification services. To support his argument, Father claims his failure to previously visit or to maintain contact with the Agency, as well as his substance abuse and mental health issues, do not provide sufficient evidence of detriment. We disagree.
Generally, when a child is placed in foster care and the court orders reunification services, the juvenile court must also order visitation between the parent and child. (§ 362.1, subd. (a)(1)(A).) However, a court may deny reunification services when it finds by clear and convincing evidence certain statutory exceptions, referred to as bypass provisions, apply. (§ 361.5, subd. (b).) After the court denies reunification services under a bypass provision, an order for visitation between the parent and child is discretionary because "visitation is not integral to the overall plan when the parent is not participating in the reunification efforts." (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Under section 361.5, subdivision (f), the court may continue to permit the parent to visit the child unless it finds visitation would be detrimental to the child. In other words, if the juvenile court finds visitation would be detrimental to the child, then it must deny visitation. (In re J.N., at p. 458.) In all other cases, the court retains the discretion to either permit or deny visitation. "[S]ection 361.5, subdivision (f) does not dictate a particular standard the juvenile court must apply when exercising its discretion to permit or deny visitation between a child and a parent who has not been receiving reunification services. The Legislature instead has left this determination to the court's discretion for the narrow group of parents described in section 361.5, subdivision (f), who have been denied reunification services at the outset." (Id. at p. 458.)
Here, the court denied reunification services to Father, which he does not challenge. Rather, the sole issue raised by Father is whether the juvenile court properly denied visitation. When the court concluded visitation by Father would be detrimental to the minor, it emphasized "Father has been MIA 90 percent of the time" and his ongoing substance abuse and mental health issues remain unaddressed. The court cited to at least five or six years of unaddressed mental health and substance abuse issues, as well as Father's failure to maintain contact with the Agency and visit the minor. In addition, the court noted the minor's siblings were removed from Father's care due to drug abuse, and Father admitted to currently having an opiate abuse issue. Because Father's drug abuse and neglect previously led to the removal of, and termination of parental rights to, the minor's siblings, the juvenile court could reasonably conclude visitation would be detrimental to the child's wellbeing as long as his drug abuse remained unaddressed.
Father correctly points out the juvenile court mistakenly applied a standard of clear and convincing evidence to its detriment finding. However, Father has not shown the mistake was prejudicial. To the contrary, the juvenile court's findings demonstrate ample basis supporting a discretionary ruling denying visitation in part because it mistakenly applied a higher standard of clear and convincing evidence to the detriment finding.
Disputing this finding, Father argues, "If no visits were detrimental, then some visits must have been in the child's best interest." However, this claim overlooks the importance of stability and continuity in a child's best interests. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317 [a primary consideration in determining the child's best interests is the goal of assuring stability and continuity].) Prior to the disposition hearing, the court granted Father's request for supervised visitation provided Father presented himself to the Agency. But Father never contacted the Agency. Aside from visiting the minor when she was in the NICU, Father has not spent any time with her or functioned in any capacity as a parent. The record thus does not support Father's claim that partial visitation would be in the minor's best interests when he has not demonstrated an ability to be a predictable and stable presence in the child's life. (See In re J.N., supra, 138 Cal.App.4th at p. 459.)
Even if we accept Father's assertion that insufficient evidence supports the court's finding of detriment, the juvenile court properly exercised its discretion to deny visitation. When the court does not make a detriment finding, it nevertheless retains the discretion to either permit or deny visitation. (§ 361.5, subd. (f).) Courts may consider the best interests of the child in exercising its discretion to permit or deny visitation. (In re J.N., supra, 138 Cal.App.4th at p. 459.)
Father asserts, without support, that if the court had not made a detriment finding, "[i]t is reasonably probable that the outcome would have included an order for one time per month supervised visits because that was the juvenile court's initial inclination and order." We disagree. The very same factors underpinning the court's detriment analysis, namely ongoing substance abuse and failure to engage in the child welfare case, support a discretionary ruling denying visitation under section 361.5, subdivision (f). The court further acknowledged it would reconsider the visitation order if Father returned to court with new evidence. These factors demonstrate the juvenile court reasonably would have denied visitation in the absence of a detriment finding.
Here, denying visitation to Father is not arbitrary, capricious, or patently absurd. The record demonstrates he has a continuing unaddressed substance abuse issue and failed to make any attempt to see the minor after she was released from the NICU. And, at this stage, reunification is no longer the goal for the minor. In conjunction with the fact a reviewing court"' "must indulge in every presumption to uphold a judgment," '" the factors considered by the court demonstrate a sufficient basis for denying visitation. (In re A.L. (2022) 73 Cal.App.5th 1131, 1161). Accordingly, we conclude the juvenile court properly exercised its discretion in denying visitation to Father.
B. ICWA Compliance
Next, Father advances two arguments under ICWA. Father argues the juvenile court erred by failing to make findings regarding the applicability of ICWA. Additionally, Father opines that by not asking the minor's maternal grandmother about Native American ancestry, despite ample opportunity to do so, the Agency failed to fulfill its duty of initial inquiry. We disagree with Father's first contention. Regarding his second argument, although we agree the Agency failed to fulfill its statutory duties, we conclude there is sufficient opportunity for the Agency and juvenile court to rectify this mistake without requiring remand.
1. Relevant Background
The Agency prepared and attached an "Indian Child Inquiry Attachment" form (Judicial Council form ICWA-010(A)) to its detention report. The ICWA-010(A) form indicated the social worker asked both parents about Native American ancestry, and both denied ancestry. The form concluded there was no reason to believe or know the minor had Native American ancestry after questioning the parents. The detention report reiterated this and asked for the court to find ICWA did not apply.
At the detention hearing, both the mother and her attorney stated she did not have Native American ancestry. The mother confirmed her attorney's statements regarding Native American ancestry during voir dire. This was again confirmed when the mother's attorney filed a "Parental Notification of Indian Status" form (Judicial Council form ICWA-020) indicating no Native American ancestry.
The Agency's disposition report requested the court find that ICWA did not apply given the parents' prior denials of Native American ancestry. An addendum report filed three weeks later reiterated the Agency's prior ICWA recommendations.
Father also completed Judicial Council form ICWA-020 indicating he had no Native American ancestry. When Father was present at the jurisdiction and disposition hearing, his attorney confirmed Father's denials of Native American ancestry on the record. During voir dire, Father stated on the record he had no Native American ancestry and confirmed he would inform the court if he obtained new information.
Subsequently, at the jurisdiction and disposition hearing the court noted ICWA was found not to apply in the parents' prior dependency cases involving the minor's two siblings. The court then stated: "I will make that same finding today based upon the statements provided by [Father's attorney] after discussing it with [Father] and based upon the Court's questions today as well as [Father's] prior responses to other judges in the past."
While the ICWA findings attachment to the court's order notes Father stated he does not have Native American ancestry, the juvenile court did not mark the section finding there is no reason to believe or reason to know the child is Native American and ICWA does not apply.
2. Juvenile Court's ICWA Finding
The parties disagree on whether the juvenile court made a finding regarding the applicability of ICWA to the dependency proceedings. Father argues the juvenile court failed to consider and make an ICWA finding. In response, the Agency acknowledges the court failed to indicate ICWA did not apply on the applicable form but notes the court voir dired both parents, who denied Native American ancestry. Additionally, the transcript shows the court stated, after noting ICWA did not apply in the dependency cases involving the minor's siblings, "I will make that same finding today." Thus, the Agency argues the court did in fact find ICWA did not apply despite failing to indicate so on the ICWA findings form.
Notwithstanding these arguments, any error regarding whether the court made an ICWA finding does not require reversal because the error has no effect on the Agency and court's ongoing duty of inquiry. (§ 224.2, subd. (a).) For the reasons stated below, there is a sufficient basis to believe the court will enter a finding, or reverse its finding that ICWA does not apply, once the Agency fulfills its duty of inquiry regarding the minor's ancestry and reports that information to the court.
3. Agency's Duty of Initial Inquiry
Father argues the Agency failed to fulfill its duty of initial inquiry when it did not ask the minor's maternal grandmother about Native American ancestry, despite opportunities to do so. We agree with Father's argument, but conclude reversal is not required.
"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.'" (In re 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 T.G. (2020) 58 Cal.App.5th 275, 288.) Under ICWA, a Native American tribe has the right to intervene or a qualified right to transfer a proceeding to its jurisdiction in certain involuntary actions involving the children of Native Americans residing off the reservation. (25 U.S.C. § 1911; In re Isaiah W., at p. 8; In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 1616-1617.) To that end, a juvenile court has an affirmative and continuing duty under California dependency law to inquire into the Indian status of a child. (§ 224.3, subd. (a).)
Section 224.2 "codifies and elaborates on ICWA's requirements of notice to a child's parents or legal guardian, Indian custodian, and Indian tribe, and to the [Bureau of Indian Affairs]." (In re Isaiah W., supra, 1 Cal.5th at p. 9.) Subdivision (a) of section 224.2 provides that "[t]he court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 may be or has been filed, is or may be an Indian child." Under subdivision (b), "[i]nquiry 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." (§ 224.2, subd. (b).) Additional duties to further inquire and notice tribes are triggered if the initial duty provides reason to believe or reason to know the child has Native American ancestry. (§ 224.2, subd. (e); § 224.3, subd. (a).) "The duty to develop information concerning whether a child is an Indian child rests with the court and the Department, not the parents or members of the parents' families." (In re Antonio R. (2022) 76 Cal.App.5th 421, 430 (Antonio R.).)
The Agency concedes it should have inquired of, at a minimum, the maternal grandmother with whom the minor was placed. However, the Agency also argues this failure does not require reversal because its inquiry yielded reliable information about the minor's possible Native American ancestry. Specifically, it notes both parents denied any Native American ancestry to the social worker and to the court during voir dire. It also claims since the juvenile court could reasonably infer the parents would know whether they took the sort of affirmative steps necessary to establish a political relationship to a tribe, the trial court also could reasonably find their denials reliably establish the minor does not have Native American ancestry within the meaning of ICWA.
In Antonio R., the Second District Court of Appeal concluded the Los Angeles Department of Children and Family Services (department) failed to satisfy its initial duty of inquiry under section 224.2, subdivision (b) (section 224.2(b)), following an appeal from an order terminating parental rights. (Antonio R., supra, 76 Cal.App.5th at p. 430.) There, the juvenile court concluded ICWA did not apply based on the child's parents' and paternal great-grandmother's denials of Native American ancestry. (Antonio R., at p. 426.) However, both the department and the court failed to ask the child's maternal grandparents, aunts, and uncle, all of whom attended the disposition hearing, about possible Native American ancestry. (Id. at p. 431.) Despite this failure, the department argued, as the Agency does here, its inquiry nevertheless provided substantial evidence supporting the juvenile court's finding that ICWA did not apply. (Antonio R., at p. 431.) The Second Appellate District disagreed, stating, "This position ignores the express obligation that [section 224.2(b)], imposes on the Department to inquire of a child's extended family members-regardless of whether the parents deny Indian ancestry." (Id. at p. 431.) In its reasoning, the court noted through the requirements of section 224.2, "the Legislature determined that inquiry of the parents alone is not sufficient." (Antonio R., at p. 431.) It further emphasized "parents may lack knowledge of a child's Indian ancestry even where the child's extended family members possess strong evidence of the child's possible Indian ancestry." (Id. at p. 432.) The court found the department's inquiry was insufficient because it failed to inquire with the maternal extended family, despite clear opportunities to do so. (Ibid.; see also In re S.H. (2022) 82 Cal.App.5th 166, 174-175 ["the Agency did not satisfy its initial ICWA duty when it failed to ask Mother's mother and the maternal relative who has custody of the minor . . . about the family's possible Native American ancestry"]; In re J.W. (2022) 81 Cal.App.5th 384, 389 [failure to ask extended family about possible ancestry violated ICWA when the department was in contact with several extended family members].)
Similarly, here the Agency's failure to ask the maternal grandmother about Native American ancestry is not sufficiently ameliorated by the parents' repeated denials of such ancestry. (Antonio R., supra, 76 Cal.App.5th at p. 431; see also In re J.C. (2022) 77 Cal.App.5th 70, 78. [concluding the department did not fulfill its duty to conduct an adequate inquiry into whether the child had Native American ancestry because it did not inquire with any extended family members, including those who were readily available].) Inquiry of the parents alone is insufficient when extended family members are readily available for interviewing. The minor was placed in her maternal grandmother's care, which provided a clear opportunity for the Agency to inquire about Native American ancestry. Under the plain language of section 224.2(b), the Agency failed to fulfill its duty of initial inquiry when it did not question the maternal grandmother about the minor's possible Native American ancestry.
The Agency's reliance on In re E.W. (2023) 91 Cal.App.5th 314 does not excuse its failure to interview any extended family members about this issue. E.W. is materially distinguishable from the case at hand. Significantly, in E.W., the Agency interviewed extended family, but the parents argued it should have also inquired with other relatives. Unlike the cases where courts held a social services agency's inquiry was inadequate, in E.W. the parents "not only reported and declared that they had no indigenous ancestry, but this was confirmed by the interviews from relatives on both sides of the family." (Id. at p. 324, italics added.) By contrast, here, the record does not show the Agency sought to interview any extended family. Accordingly, the Agency failed to fulfill its duty of initial inquiry under the plain language of section 224.2(b).
Despite the Agency's error, however, we do not need to disturb the juvenile court's findings at this time. In In re S.H., this court held "disturbing an early order in a dependency proceeding is not required where, as here, the court, counsel, and the Agency are aware of incomplete ICWA inquiry.... So long as proceedings are ongoing and all parties recognize the continuing duty of ICWA inquiry, both the Agency and the juvenile court have an adequate opportunity to fulfill those statutory duties." (In re S.H., supra, 82 Cal.App.5th at p. 179.) In that case, the mother appealed a juvenile court's jurisdictional findings and dispositional order placing her child in out-of-home care. The mother argued respondent, San Francisco Human Services Agency, failed to comply with ICWA and state law implementing ICWA. (In re S.H., at p. 173.) The agency conceded it did not fulfill its duty of initial inquiry under ICWA because it failed to question two maternal relatives about possible Native American ancestry. (In re S.H., at p. 173.) Although the court agreed the agency failed to satisfy its initial ICWA duty of inquiry, it held the juvenile court's orders did not need to be disturbed. (In re S.H., at pp. 174-175.) In its reasoning, the court focused on whether the social services agency provided the court with grounds to believe its duty of initial inquiry would be satisfied, rather than whether the error was harmless. (Id. at p. 176.) It noted the agency conceded error and was aware of its inquiry duties as it asked the child's parents about Native American ancestry before filing a dependency petition. (Id. at p. 177.) Further, the juvenile court was also aware of its continuing duty as it made its ICWA finding without prejudice. (In re S.H., at p. 177.) Thus, "[i]t would make little sense to reverse the jurisdiction/disposition order in order to direct the Agency and the juvenile court to do something they recognize they must do anyway." (Ibid.)
Similarly, Father challenges the juvenile court's findings from a jurisdiction and disposition hearing, and the Agency has the ability to rectify its error before the permanency planning hearing under section 366.26. Further, the Agency acknowledges its error and recognizes the continuing obligation to satisfy its duty of inquiry. The record demonstrates both the Agency and the juvenile court are aware of their duties under ICWA. This is evidenced by the Agency questioning both parents on their heritage, as well as the juvenile court's voir dire of the mother and Father. The juvenile court took judicial notice that ICWA was found not to apply in prior dependency cases involving the minor's siblings. Additionally, the court asked Father to update the court if new information became available regarding his ancestry, suggesting an awareness of its power (and duty) to reverse a finding that ICWA does not apply" 'if it subsequently receives information providing reason to believe that the child is an Indian child.' (§ 224.2, subd. (i)(2); see also [Cal. Rules of Court,] rule 5.482(c)(2).)" (In re S.H., supra, 82 Cal.App.5th at p. 176.) As was the case in In re S.H., we expect the Agency and the juvenile court to fulfill their statutory duties of continuing inquiry. This will include the Agency asking the minor's maternal grandmother and others listed in section 224.2(b) to the extent they are available for interviewing about Native American ancestry in advance of the section 366.26 hearing. Because both the Agency and the juvenile court have indicated they understand these duties, there are sufficient grounds to believe they will discharge their statutory duties of continuing inquiry without reversal.
III.
DISPOSITION
Father's petition for extraordinary writ and stay request are denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
WE CONCUR: HUMES, P. J., BANKE, J.