Opinion
B201650
4-22-2008
In re ADRIAN M, et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ESPERANZA A., Defendant and Appellant.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred W. Klink, Deputy County Counsel for Respondent.
NOT TO BE PUBLISHED
Esperanza A.s parental rights with respect to her sons Adrian M. and Angel R. were terminated pursuant to section 366.26 of the Welfare and Institutions Code. Esperanza appeals on two grounds: that the trial court abused its discretion when it reduced her visitation in a 2006 hearing, and that the Department of Children and Family Services failed to give adequate tribal notice under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.). We reverse and remand with directions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Adrian M., born in 1993, and Angel R., born in 1999, were the subjects of a dependency petition filed by the Department of Children and Family Services (DCFS) in 2002. Adrian M. was declared a dependent of the juvenile court under section 300, subdivisions (b) and (g), and Angel was declared a dependent under section 300, subdivision (b).
On November 1, 2002, the trial court inquired as to the possibility that either child was of Native American ancestry. Angel R.s father, who was present in court, reported that he had no Native American ancestry. Esperanza A. reported that she was Navajo, but that she was not registered. She also informed the court that Adrian M.s father had Native American ancestry but that she did not know his tribe. The trial court ordered ICWA notices to the Navajo Nation, but made no ICWA order with respect to Adrian M.s father despite the attorney for DCFS observing that "they should at least notify the Bureau as to [Adrian M.s] father as well."
Over the next several years, the childrens placements varied. As of October 2006, the children were placed in the home of their maternal grandmother, with a court order permitting Esperanza A. to have monitored visitation a minimum of two times per week, with at least two hours per visit. Based on inappropriate behavior by Esperanza A., DCFS requested that the visitation be decreased to every other week. On October 23, 2006, the juvenile court modified the visitation order accordingly.
At the same hearing, the juvenile court set the matter for a permanent plan hearing under section 366.26. Esperanza A. was not advised that she could seek review of this determination by means of a petition for writ review. At this hearing, the court ordered that ICWA notices be given for the section 366.26 hearing.
On August 21, 2007, the juvenile court ruled that "the case is not an American Indian/ICWA matter." On that date, the trial court terminated the parental rights of Esperanza A. and the boys fathers. Esperanza A. appeals.
DISCUSSION
I. Order Curtailing Visitation
At the October 23, 2006 hearing, the trial court reduced Esperanzas visitation with her two sons to twice a month for two hours per visit and set a hearing under section 366.26. Ordinarily, orders made at the hearing at which the trial court directs that a section 366.26 hearing be held are not reviewable on direct appeal, but must instead be challenged through writ review. (§ 366.26, subds. (l)(1) & (l)(2); Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1506-1507.) An exception is made, however, when the trial court fails to advise a party, as required by statute, that the party must file a petition for writ review in order to preserve the right to appeal on the basis of any such orders: In such cases, a parent may appeal from findings and orders made at a hearing at which a case is set for a section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)
The parties agree that the record does not demonstrate that the trial court advised Esperanza A. as required by section 366.26, subdivision (l)(3)(A). Accordingly, as County Counsel concedes, Esperanza A. is entitled to challenge findings and orders made at the October 23, 2006 hearing.
While Esperanza A. may challenge the order reducing her visitation with her sons, she has not established that the trial court abused its discretion. Although the record indicates that the visits were not without positive aspects, Esperanza A. repeatedly engaged in inappropriate conduct during visits. In the six months before the trial courts order, the record demonstrates that Esperanza A. refused to follow the directions for parental visitation by "engaging in prolonged and tearful goodbyes, not listening to the children or being open to feelings they share[d] with her, and talking badly about others close to the children[,] including their caregiver and grandmother." She discussed the case and placement issues, talked about her loneliness, and made promises for the future that she had no control over. When a social worker would intervene to direct her not to do such things, Esperanza A. would become upset, blame the social worker or DCFS for her problems, and try to get the children to take her side.
Esperanza A. engaged in inappropriate conversations with her sons. On one occasion, she berated Adrian M. for not giving her a Mothers Day gift made at school, accusing him of giving the school-made gift to his caregiver or grandmother instead of to her, when in fact, Adrian M. explained, he had not completed the Mothers Day gift that he had begun at school and so he gave her a book instead. At another visit, she accused Adrian M. of "`playing the victim and told him `but you were not some abused child," and then told Adrian M. that when she hit him with a hanger he deserved it. She threatened the children with discontinuation of their visits with their grandmother if the grandmother did not stop talking about her, although the children denied that their grandmother did so. When she began to tell them that she would move out of a shelter where she was staying rather than comply with their rule that no pets were allowed, so as not to "leave [the cat] hanging," the children—who of course could not expect to be placed in their mothers care until, among other requirements, she had acquired a permanent residence—began to ignore her and play on their own. She then announced that she wished that Angels father were present to "take some of the `crap because it was not fair." When the children continued to ignore her, she became upset and left the visit early, telling her sons, "I dont know why I bother anymore."
Esperanza A.s behavior resulted in the early termination of visits on at least one occasion. At one visit, the children were out of sorts due to an argument they had prior to the visit. Esperanza A. tried to get them to discuss the issue, but when the boys were unwilling, she immediately personalized the matter, declaring that the boys grandmother must have been "bad-mouthing" her to the boys and beginning to cry and be "really upset," according to the observing social worker. When warned to cease this behavior, Esperanza A. did not comply, and the social worker terminated the visit. Esperanza A. also missed some visits.
Esperanza A.s conduct had obvious effects on Adrian M. and Angel R. "The children expressed frustration and appeared to shut down during visits when the mother verbally argued with the foster mother and made negative statements toward the foster mother, childrens grandmother, and the [social worker,] which occurred approximately two to three times per visit." At a visit to which Esperanza A. brought a pet cat, leading the family to meet outside rather than in the designated visiting rooms, Esperanza A. derailed the entire visit by picking a fight with the social worker when the social worker asked them to go inside because it was getting cold outside. Esperanza A. was upset that that the social worker had not provided a jacket for the visit that had been expected to take place indoors, refused to follow the social workers directions, and argued with the social worker. Meanwhile, the younger child wet his pants. The visit ended with the children in tears.
At the most recent visit chronicled in the status report before the court at the time it made the challenged ruling, Esperanza A. was again inappropriate with her children, causing them obvious distress. Adrian M. and Angel R. had a fight, and Adrian M. hit Angel R., causing Esperanza A. to be angry with Adrian M. When Adrian M. told his mother that he had learned his conduct from watching her, Esperanza A. responded that her mother abused her when she was a child. When Adrian M. said he did not want to hear her account, she "accused the[ children] of wanting to be with their grandmother because she buys them things and has a home. Adrian denied this. The [social worker] told them to change the subject. Later in the visit, [Esperanza A.] started talking badly about the grandmother and other maternal relatives[,] including a cousin who sometimes watches the children. Adrian started to argue with [Esperanza A.] about the things she was saying but stopped and told her[, `Y]oure not worth my time[. Esperanza A.] got mad at him for being disrespectful and told him he did not talk to her like that until he went to live with his grandmother." At that point, the social worker intervened, and Angel R. ran to the bathroom. Esperanza A. and Adrian M. continued to argue, leading the social worker to warn them several times that if they did not stop, the visit would be terminated. The argument continued, so the social worker announced that the visit was over. Esperanza A. began to cry, saying that she would not let her son disrespect her and that she was doing everything she was supposed to be doing. At this point, Angel R., who had returned from the bathroom, began to cry. Esperanza A. refused the social workers instruction to leave. She then refused the security guards instruction to leave. At that point, unsure of how long it would take law enforcement to respond and unwilling to traumatize Angel R. any further, the social worker removed Adrian M. from the room for the 20 minutes remaining in the visit. During those 20 minutes, the social worker had to instruct Esperanza A. repeatedly not to speak to Angel R. about his grandmother or other relatives.
Adrian M. called the visits "too much." Angel R. said that the visits are "good" but reported that he does not like that his brother and mother fight. Angel R.s treating psychiatrist reported in January 2006 that Angel R. became distraught after having telephone conversations with his mother, and that he was having difficulty sleeping, was vomiting, had diarrhea, and became easily agitated around the time of those calls.
All of this evidence supported the trial courts determination that visitation between Esperanza A. and her sons should be reduced. Esperanza A. has not established any abuse of discretion here.
II. Failure to Comply with ICWA Notice Requirements
Early in the juvenile court proceedings, it came to the attention of DCFS and the court that Adrian M. and Angel R. might be of Navajo descent, but DCFS and the trial court failed to comply with the notice and procedural requirements of ICWA. ICWA notices using the SOC 319 form were sent prior to three juvenile court hearings. The first notice, dated December 5, 2002, was directed to the Bureau of Indian Affairs (BIA). It listed both children but designated Adrian M. as the only person who might be affiliated with the Navajo tribe; it did not include his mothers city of birth, included only one grandparents name and no further information about her, indicated that no Native American heritage was claimed as to Adrians father, and failed to provide his place of birth. The notice dated December 20, 2002, was sent to the Navajo Nation of Arizona and listed both boys names. It also failed to include Esperanza A.s city of birth, listed only the maternal grandmothers name and no additional information about her or the other grandparents, and omitted all paternal information entirely. The undated notice pertaining to the July 25, 2003 hearing is identical to the December 20, 2002 notice. No ICWA finding was made based on these notices.
Title 25 United States Code section 1912(a) specifies: "In 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 foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] . . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary [of the Interior]. . . ." (Italics added.)
Prior to the 366.26 hearing, the court ordered additional ICWA notices. The ICWA notices sent out at this time with respect to Angel R. did not include Esperanza A.s city of birth and listed an impossible birthdate for his maternal grandfather, who was alleged to be of Native American ancestry. The notices for Adrian M. also failed to include his mothers city of birth and contained no information pertaining to his fathers side of the family beyond his fathers name, birthdate, and state of birth, and his paternal grandmothers first name. The notices sent appear not to have been directed to the tribes registered agents for service as listed in the Federal Register, but to the tribes "ICWA representative." County Counsel notes that some notices were sent to addresses other than those that appear in the Federal Register. It also appears from the record that no notice may have been sent to the Bureau of Indian Affairs for Adrian M., whose father had been released from prison but could not be located at that time.
As Esperanza A. argues and County Counsel concedes, these notices were inadequate under ICWA. The juvenile court and DCFS have an affirmative duty to inquire whether the child named in the dependency petition is or may be an Indian child (In re Desiree F. (2000) 83 Cal.App.4th 460, 470; former Cal. Rules of Court, rule 1439(d); see also Cal. Rules of Court, rule 5.480(a)), and to give notice by registered mail, return receipt requested, to the tribe of both the proceedings and the right to intervene. (25 U.S.C. § 1912(a).) If the tribe is not known, notice must be given to the BIA. (Ibid.) The notice must include the petition and following information, if known: the childs name, birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible to enroll in; the names of the childs mother, father, grandparents, great-grandparents, and any Indian custodians; those individuals maiden, married, and former names as applicable, their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses. (25 C.F.R. § 23.11(a) & (d).)
Here, the court should have ordered and ensured compliance with the notice provisions with respect to both Esperanza A. and Adrian M.s father, and also should have complied with all requirements of ICWA in conducting hearings until such time that it was determined that either Adrian M. and Angel R. were not Indian children or that they were Indian children but their tribe(s) declined to intervene in the juvenile court proceedings. "The juvenile courts failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.) DCFS concedes that complete ICWA notices were never sent, which requires vacation of orders made without proper notice. (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 110-111.) Accordingly, we reverse and remand the order denying terminating parental rights, with directions to the court to order DCFS to perform appropriate inquiry and to provide proper ICWA notices consistent with the requirements of ICWA and California Rules of Court, rule 5.481. If a tribe responds, indicates that Adrian M. or Angel R. is an Indian child, and seeks intervention, the relevant orders shall be vacated for that child and proceedings consistent with ICWA conducted. If no tribe responds that Adrian M. or Angel R. is an Indian child, or if no tribe seeks to intervene, the court should reinstate its section 366.26 order.
DISPOSITION
The order terminating parental rights under section 366.26 is reversed and the matter is remanded to the juvenile court with directions that within 30 days of the remittitur, pursuant to ICWA and rules 5.481 and 5.482 of the California Rules of Court, DCFS investigate and provide the appropriate tribe or tribes and the Bureau of Indian Affairs with proper notice of the pending proceedings.
If, after notice is properly given, no tribe responds indicating that Adrian M. or Angel R. is an Indian child within the meaning of ICWA, the court shall reinstate its order terminating parental rights. If a tribe determines that Adrian M. and/or Angel R. is an Indian child and seeks to intervene in the juvenile court proceedings, the juvenile court shall vacate the relevant orders and conduct all proceedings in accordance with ICWA and the California Rules of Court.
We concur:
PERLUSS, P. J.
WOODS, J.