Opinion
C094173
03-08-2022
In re K.P., a Person Coming Under the Juvenile Court Law. v. K.P. et al., Defendants and Appellants. GLENN COUNTY HEALTH HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. 20JP00979
HOCH, J.Ka.P. (mother) and T.S. (father) appeal from the juvenile court's orders terminating their parental rights and ordering a permanent plan of adoption for the minor, K.P. (Welf. & Inst. Code, § 366.26.) Mother contends: (1) her claims arising from the jurisdiction and disposition proceedings are cognizable on appeal because the juvenile court failed to provide the writ advisement required by section 366.26, subdivision (l); (2) the juvenile court erred in failing to serve notice of the jurisdictional hearing upon mother by personal service or certified mail in compliance with section 291, subdivision (e)(1); and (3) despite her counsel's failure to object to the inadequate notice, her claim is not forfeited or, in the alternative, her counsel was ineffective. The Glenn County Health and Human Services Agency (Agency) concedes that the notice was improperly served, but contends the error was harmless and counsel was not ineffective in failing to object.
Further undesignated statutory references are to the Welfare and Institutions Code.
Father contends that the Agency and juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) because the Agency did not adequately inquire into information that the minor may have Cherokee heritage. (25 U.S.C. § 1901 et seq.; § 224.2.) The Agency concedes the error.
We will conditionally reverse and remand the matter for limited proceedings to ensure ICWA compliance. We otherwise affirm.
BACKGROUND
The Agency detained newborn K.P. in May 2020 after mother, who had a long history of prior dependency cases, drug abuse, and criminal activity, gave birth to him and he tested positive for amphetamine and THC. The Agency filed a juvenile dependency petition alleging that K.P. came within section 300, subdivisions (b) and (j). Mother was homeless and stated at the hospital that T.S. was the father but refused to provide father's name to the Agency. Mother did not appear at the initial hearing held on May 27, 2020, and the Agency reported that it had not been able to contact her. The court found that notice of the date, time, and location of the hearing had not been given to mother but the social worker made reasonable attempts and exercised due diligence in attempting to locate her. The court ordered K.P. detained.
According to the jurisdiction report, two days after K.P.'s birth mother left the hospital against doctor's orders and did not contact the Agency until June 3, 2020. Mother was informed of the jurisdiction hearing set for June 18, 2020, by having a copy of the "Juvenile Dependency Petition, Notice of Hearing on Petition and Detention Report" mailed to her by the Agency by first class mail on May 27, 2020. Mother was further informed of the jurisdiction hearing initially set for June 18, 2020, by social worker Cynthia Reyes, on June 4, 2020.
At the jurisdiction hearing held on June 18, 2020, mother was not present, but the maternal grandmother informed the court that mother could not attend the proceedings because she was seeing a doctor for a problem with an incision. The court continued the jurisdiction proceedings to July 2, 2020. Mother did not appear at the continued jurisdiction hearing, and her attorney had not had contact with her. T.S. appeared as an alleged father, and the court appointed counsel for him and ordered a DNA test. The court sustained the petition and found the minor to be a dependent of the court pursuant to section 300, subdivisions (b) and (j).
On May 27, 2020, at the initial hearing, the maternal grandmother informed the court that the maternal grandfather "was Indian and [mother] is." The court found that K.P. may be an Indian child and ordered the Agency to provide notice "as required by law" to all of the identified tribes and the Bureau of Indian Affairs. The record does not contain evidence the notice was provided or that the Agency made any further inquiry of extended family members or the reporting party. The Agency's June 18, 2020, jurisdiction report made no mention of the maternal grandmother's statement or any effort to comply with the court's order; it simply stated that "[t]he Indian Child Welfare Act does not apply." However, both parents signed Parental Notification of Indian Status forms (Judicial Council Forms, form ICWA-020 (Mar. 25, 2020); hereafter ICWA-020 form) denying any known Indian ancestry. On August 6, 2020, the court found that the ICWA did not apply.
A disposition report, filed August 3, 2020, recommended that mother be bypassed for reunification services pursuant to section 361.5, subdivision (b)(10) and (11). In 2014, mother gave birth to K.P.'s sibling, G.P., who tested positive for methamphetamine and THC at birth. G.P. and his sibling, Ga.P., were removed from mother's care, and mother's parental rights to the siblings were terminated. Neither father nor mother were present at the August 6, 2020, disposition hearing, and mother's counsel stated he had not had any contact with her. The court reiterated to father's counsel the short timeline for father to "step up as presumed father" and seek that change in status through a section 388 petition. The court ordered K.P. removed from mother's care and placed in a suitable licensed community care facility. The court denied reunification services to mother pursuant to section 361.5, subdivision (b)(10) and (11) and set a selection and implementation hearing pursuant to section 366.26. The court ordered the clerk of court to provide written notice to all parties not present (i.e., mother & father) of the need to file an extraordinary writ in order to preserve any right to appellate review of its order setting a section 366.26 hearing. Although both parents were provided written notice of the section 366.26 hearing, the record contains no written notice to mother or father pursuant to section 366.26, subdivision (l) and California Rules of Court, rule 5.695(g)(10) of the "need to seek an extraordinary writ to preserve the right to review on appeal."
On December 16, 2020, father filed a request asking to be named K.P.'s presumed father. DNA test results showed he is K.P.'s biological father. The court held a hearing on February 4, 2021, on father's section 388 petition to change his status from alleged to presumed father. The court found that while he had established biological paternity, he did not meet the requirements for presumed father status.
The court held the section 366.26 hearing on May 6, 2021. Mother and father were both present. The court found that although mother had made efforts to visit and establish a bond with the child, visitation had not been consistent due to mother's incarceration since January of 2021. The court found by clear and convincing evidence the child was likely to be adopted and that mother had not established an exception to adoption. The court terminated the parental rights of mother and father.
DISCUSSION
I
Notice of Jurisdictional Hearing
Because mother's contentions on appeal are related, we will address them together. As a preliminary matter, mother asserts, and the Agency concedes, that her substantive claim of error is reviewable on appeal despite mother's failure to challenge the findings and orders of the jurisdiction and disposition proceedings by filing a petition for extraordinary writ because she was not provided notice of the requirement. We agree with the parties and will turn to the merits of mother's claim of error. (See In re A.A. (2016) 243 Cal.App.4th 1220, 1240 ["notwithstanding a parent's failure to file a petition for extraordinary writ after the setting hearing, the courts have found good cause to address the merits of a challenge to orders made at the setting hearing in an appeal from the order terminating parental rights when the juvenile court did not adequately inform the parent of their right to file a writ petition"].)
Mother contends that she was not served with proper notice of the jurisdictional hearing or the dispositional hearing, violating her rights to due process. The Agency concedes that notice was required to have been given by personal service or certified mail, return receipt requested, pursuant to section 291, subdivision (e)(1). The Agency further concedes that the notices of the jurisdictional hearing and dispositional hearing mailed to mother did not meet this standard. However, the Agency contends any error was harmless, in part because mother was informed of the hearings by other means and, regardless of whether the error was harmless, mother forfeited her claim on appeal by failing to object below.
Rather than noticing mother by personal service or certified mail, the Agency informed mother of the jurisdiction hearing set for June 18, 2020, by having a copy of the "Juvenile Dependency Petition, Notice of Hearing on Petition and Detention Report" mailed to her by first class mail on May 27, 2020. Mother was further informed of the jurisdiction hearing initially set for June 18, 2020, by social worker Cynthia Reyes on June 4, 2020. Similarly, proper notice of the dispositional hearing was not given at least five days before the hearing in compliance with section 291, subdivision (c)(1). However, the Agency sent by first class mail the disposition report to mother on August 3, 2020. The report was not entitled "notice" but included most of the information required by section 291 regarding the August 6, 2020, hearing: information about the name and address of the person notified; nature of the hearing; sections and subdivisions under which the proceedings were initiated; date, time, and place of the hearing; and name of the child. (§ 291, subd. (d).) We agree with mother and accept the Agency's concession that these notices were improper and violated mother's rights to due process. We turn to the issue of forfeiture.
As mother concedes, she was represented by counsel but not present at the jurisdictional hearing on July 2, 2020, and she was represented by counsel but not present at the dispositional hearing on August 6, 2020. Although mother's counsel made a general objection to the "findings of the jurisdiction report," he did not object during the jurisdictional hearing when the court stated that it found "notice has been given as required by law." Nor did mother's counsel object to notice during the dispositional hearing. An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754 (Wilford J.).) In Wilford J., the Court of Appeal found that a father in a dependency case was not properly noticed of the jurisdictional hearing, but held that he had forfeited his challenge by appearing with counsel at subsequent disposition hearings without challenging the juvenile court's earlier finding that notice of the jurisdictional hearing was properly given. (Ibid.) Similarly, the Supreme Court has held that a mother in a dependency case forfeited her right to challenge a jurisdictional order by appearing at subsequent proceedings without seeking to terminate jurisdiction or otherwise challenging the validity of the jurisdictional order. (In re B.G. (1974) 11 Cal.3d 679, 689; see Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother's failure to object to proceeding with dispositional hearing waived defective notice claim on appeal].) Rather, the mother's later court appearance asking for custody impliedly recognized the jurisdiction of the court to issue a dispositive order. (In re B.G., at p. 689; Marlene M., at p. 1149.) "In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise[, ] those arguments have been waived [or forfeited] and may not be raised for the first time on appeal. [Citations.]" (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Based on the record, we conclude mother forfeited any challenge to the improper notices by failing to object below.
Anticipating the possibility of forfeiture, mother asks us to exercise our discretion to reach the merits of her defective notice claim even if we would otherwise deem it forfeited. She asserts that the alleged error presents an important legal issue based on undisputed facts. It is true that forfeiture is not automatic, and appellate courts have discretion to excuse a party's failure to properly raise an issue in a timely fashion. (Wilford J., supra, 131 Cal.App.4th at p. 754.) However, we decline to do so here. "[I]n dependency proceedings, where the well-being of the child and stability of placement is of paramount importance," an appellate court's discretion to excuse forfeiture" 'should be exercised rarely.'" (Id. at p. 754.) Further, "when a parent had the opportunity to present [a notice] issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court." (Ibid.)
This is just such a case. Far from being a purely legal issue, whether mother received adequate notice of the jurisdictional hearing and dispositional hearing is a factual question regarding whether mother had actual notice that has not been adequately developed on the record before us because the matter was never properly raised in the juvenile court as required. We do not condone the notice practices here. At the very least, mother should have received notice of hearings by certified mail, return receipt requested. (§ 291, subd. (e)(1).) However, we decline to exercise our limited discretion to review the merits of mother's claim.
Mother also raises an alternative argument of ineffective assistance of counsel, contending that if we find a forfeiture, then her counsel was ineffective in failing to object. We are not convinced. To establish ineffective assistance of counsel in dependency proceedings, a parent must establish both that his or her attorney's representation was deficient and that this deficiency resulted in prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) To prove deficient representation, an appellant must show that counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Loza (2012) 207 Cal.App.4th 332, 351.) Where, as here, "counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) Here, there could be any number of reasons mother's counsel did not object to the lack of proper notice, none of which are dispelled by the record. For example, counsel may have tactically decided not to object because he was aware that mother had actual notice of the hearings, or he may have been concerned that mother's appearance could lead to her arrest on an outstanding felony warrant. Counsel may have been aware of evidence that, even if the mother had been given proper notice, she would not have appeared, and therefore the lack of notice was harmless. We also note that mother does not challenge on appeal the merits of the jurisdictional or removal orders but only the technical defects in notice. Based on this record, mother cannot establish that counsel was ineffective in not objecting to the lack of notice.
II
ICWA Compliance
Father contends, and the Agency concedes, that the Agency failed to comply with the ICWA requirements in its duty of initial inquiry to ask the parents, extended family members, anyone with an interest in the child, and the reporting party whether K.P. was or might be an Indian child. (§ 224.2, subd. (b).) Mother joins in this argument. We accept the Agency's concession, and we will reverse and remand for further limited proceedings.
"The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. (See 25 U.S.C. § 1902; In re Levi U. (2000) 78 Cal.App.4th 191, 195-196.) A major purpose of the ICWA is to protect 'Indian children who are members of or are eligible for membership in an Indian tribe.' (25 U.S.C. § 1901(3).)" (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an" 'Indian child'" as a child who "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).) The juvenile court and the Agency have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)
Section 224.2, subdivision (e) provides that if the court or social worker has reason to believe that an Indian child is involved in a proceeding, the court or social worker shall, as soon as practicable, make further inquiry regarding the possible Indian status of the child. Further inquiry includes, but is not limited to: (1) interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of section 224.3; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in; and (3) contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. Contact with a tribe must, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the ICWA, and sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case. (§ 224.2, subd. (e).)
Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the Indian child, if known; the name of the Indian tribe; and the names and other identifying information of the Indian child's biological parents, grandparents, and great-grandparents, if known.
"[S]ection 224.2 creates three distinct duties regarding [the] ICWA in dependency proceedings. First, from the Agency's initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.)
As father argues and the Agency properly concedes, the Agency only inquired of mother and father, both of whom filed an ICWA-020 form stating that none of the listed circumstances which might establish the child as an Indian child applied. However, there is no evidence in the record that the Agency made inquiry of any extended family members or the reporting party. The Agency's duty of the ICWA inquiry extends to both the reporting party and the minor's extended family, if known. (§ 224.2, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) Here, information regarding the minor's extended family was known to the Agency. Given the state of the record, we cannot say the failure of the ICWA compliance was harmless. A failure to conduct a proper ICWA inquiry requires reversal of the orders terminating parental rights and a limited remand for proper inquiry and any required notice. (In re A.B. (2008) 164 Cal.App.4th 832, 839; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1456.) We must conditionally reverse and remand the matter for limited proceedings to ensure ICWA compliance.
DISPOSITION
The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of complying with the inquiry and notice provisions of the ICWA. If, after proper and complete inquiry, the minor is found not to be an Indian child falling within the provisions of the ICWA, the orders terminating parental rights shall be reinstated. However, if a tribe determines the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing and proceed in accordance with the ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)
We concur: BLEASE, Acting P. J., ROBIE, J.