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In re Charles N.

California Court of Appeals, First District, Second Division
Apr 13, 2009
No. A121373 (Cal. Ct. App. Apr. 13, 2009)

Opinion


In re Charles N., a Person Coming Under the Juvenile Court Law. LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. George N. et al., Defendants and Appellants. A121373 California Court of Appeal, First District, Second Division April 13, 2009

NOT TO BE PUBLISHED

Lake County Super. Ct. No. JV-320145

Richman, J.

These three appeals are by the parents and grandparents of a boy taken into the juvenile dependency system before he was a year old. The dependency concluded with the termination of both parents’ rights as to the child. Through this entire period, the grandparents unflaggingly sought to have the child placed with them, even if the reunification efforts of the parents were not successful.

The parents, who have filed separate and lengthy briefs, present numerous arguments looking to overturn the order terminating their parental rights. Many of these arguments are joined by the grandparents. These arguments will not prevail, and we shall affirm the termination order.

The primary goal of the grandparents’ appeal—and in this they are joined by the parents—is to overturn the placement order made at the same time as the termination order. They earnestly insist that the juvenile court abused its discretion in maintaining placement with the foster parents who were prepared to adopt, arguing that what the court should have done was shift placement to a member of the family, most obviously the grandparents themselves. Although we sympathize with the family’s frustration at not getting custody, we are unable to conclude that the juvenile court exceeded the bounds of reason by leaving the minor with the extraordinarily qualified foster parents who had cared for him since he was detained.

BACKGROUND

The minor, Charles N., is the son of George N. (Father) and N.P. (Mother). Anthony N. is the father, and M.J.N. is the mother, of George; they are thus Charles’s paternal grandparents (Grandparents).

On Friday, September 22, 2006, the Lake County Department of Social Services (Department) filed a petition in which it was alleged that Charles qualified as a dependent child under Welfare and Institutions Code section 300, subdivision (b). The majority of the 15 specific allegations concerned Mother’s and Father’s drug use and inability for provide for Charles. It was also alleged that Father was “on parole for sex charges.”

Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Also on September 22, the juvenile court held a brief hearing on the Department’s request that Charles be detained. The reporter’s transcript of the hearing shows that Mother, Father, and Grandparents were present. The hearing opened with the court explaining to those present that the bailiff was “giving you a brochure” about “juvenile dependency proceedings.” Attorney Karen Evans of the Lake County Public Defender’s Office, stated that “I will represent the mother. Mr. Wiley can represent [the father].” Ms. Evans was specially appearing for Mr. Wiley because he was on vacation until the following Monday. The court inquired “In terms of detention, is it submitted at this point in time?” Ms. Evans replied “Yes.” After ascertaining that Father’s mailing address was the same as the Grandparents’, the court took judicial notice of “the file” and ordered Charles detained in the Department’s custody. The court further stated, “An inquiry has been made by the Lake County Department of Social Services regarding the Indian Child Welfare Act eligibility, and that act does not apply.” The court then set the jurisdictional hearing for October 16.

The court was basing this finding on these statements at the bottom of the petition: “ICWA Inquiry: [¶] On or about 9/19/2006 Social Worker John Griffith inquired of the mother is she or the minors’ [sic] father have Native American Heritage. The mother stated that they do not. [¶] On or about 9/20/2006 Social Worker John Griffith inquired of the paternal grandmother if the minors’ father has Native American Heritage. The paternal grandmother stated that they do not.”

By October 16, 2002, the court had filed the Department’s jurisdiction report in which it noted that “The mother... was a dependent of the juvenile court as a minor,” and that Father, in addition to being on parole, “Is currently incarcerated at the Hill Road Correction Center in Lakeport” following arrest on September 27 for a parole violation and possessing a controlled substance for sale.

The Department subsequently advised the court that Mother “was a dependent of the Lake County Juvenile Court after being removed from her mother’s care, at the age of fourteen, for physical and emotional abuse.”

Details of Father’s criminal history emerged as the dependency progressed. He went to prison for two years for what he termed “unlawful sex with a minor” (see Pen. Code, § 261.5), and he went through diversion for what he called “drug charges” in 1996 1997. A background check showed that Grandfather was also diverted after drugs were found in his car. Father told the court that the drugs belonged to him.

On October 16, the court was informed by Mr. Wiley that he had represented the Mother “as a de[p]endant child herself,” and this would “necessitate[] a change I think.” Without objection from Father, who was “present in custody,” or the Grandparents, who were also present, the court allowed Mr. Wiley and Ms. Evans to exchange assignments: Ms. Evans, originally appointed for the Mother, would now represent the Father, and vice versa for Mr. Wiley. The court ascertained that Ms. Evans had not yet interviewed Mother.

Mr. Wiley requested a continuance of the hearing to October 23. When the court inquired “So there’s no problem with a one-week continuance from everybody’s perspective?,” Ms. Evans replied that father “has a problem with it, but it has more to do with placement”; both he and Mother “want[] the child placed with the grandparents, his parents.” There followed some discussion about “normal checks and clearances,” including fingerprint checks. The court determined that this was not a reason for not continuing the hearing to the 23rd, but it told the grandparents to “keep in contact” with the Department.

On October 23, Mother, Father, and the Grandparents were present for the jurisdictional hearing. Father testified about the circumstances of his recent arrest, for which he would be in court the next day. He also testified about Mother’s “fits of anger” and “mood disorders”; that he was working when Charles was taken into custody at the maternal grandmother’s house; and that the allegation that he failed to provide food for Charles was incorrect. Father admitted that “I’m on parole for unlawful sex with a minor,” and that he was convicted of “drug charges” in “ ’97, ’96.”

Department social worker John Griffith testified briefly about the circumstances of the initial investigation of Charles on September 19. Ms. Evans, counsel for Father, wanted to cross-examine “only about placement,” but the court ruled that such a subject was “not correct at this proceeding[].”

Grandfather testified that there was food for Charles at Father’s house at the time Charles was taken into custody at the maternal grandmother’s house; Grandfather knew this because he drove Father, who had no means of transportation, to the store to buy food two days before the Department investigated on September 19.

Social worker Griffith retook the stand and testified that when the Department did a follow-up investigation on September 20, Charles was attended only by Mother and a female friend, both of whom were believed under the influence of methamphetamine.

When the court inquired if any party had any further evidence, Father’s counsel Ms. Evans stated: “No evidence, Your Honor. But my understanding was last time we were in court that the grandparents were going to be assessed and their house was going to be looked at. I was wondering what became of that. Specifically, the grandparents that are here in the courtroom.” Counsel for the Department advised the court, “I don’t have any current information on that. The social worker’s not the one doing the assessment. Everything was turned over to them last week is my understanding and that it’s in progress.”

Grandfather then addressed the court: “Well, on Tuesday we were told that it was turned in to the worker that was supposed to come out and check the house. Then again when we were called Thursday, as you told us to do last week, Your Honor, you told us to keep calling, we were told, oh, it was done Thursday instead of on Tuesday. And when we—the guy called this morning to come out and check our house, he was very rude with me, first off. [¶] Secondly, he says, ‘Well, what do you want me to do, not even come?’ This is no way for a CPS worker to work. They were told to come out last week by you yourself, Your Honor. Either they’re not—they’ve made every excuse to make sure that the child wasn’t put back in our home so far. And we want to know why.”

The court learned from the Department that “the maternal grandmother also has asked for placement,” and that “the LiveScans” had “been done as to grandparents.” Without addressing this issue, the court then sustained virtually all of the allegations of the petition. The court also expressed its opinion that it found “hard to believe that the father is leaving the child well supervised with a person he doesn’t even know the last name of and who is adjudged to be under the influence of meth when the police arrive for one of the home visits.”

The court then set November 6, 2006, for the dispositional hearing, at which time “I’m hoping that CPS then will finish checking out both grandparents’ houses. That will be one of the issues at disposition....” At that point Grandfather interjected “That means we have to wait until after the 6th to get the baby back into the family?” At that point counsel for the Department changed what he had just told the court; he now learned that “The LiveScans came back and they’re favorable to both. [¶]... [¶]... So CPS will move forward with the placement options.” The court then told Grandfather: “What they’re saying, sir, is the child may be placed in one of your cares, one of the grandparents’ houses. It could be sooner than November 6. It doesn’t have to wait to that point.”

In its disposition report the Department noted under “Problems Requiring Intervention and Possible Causes: [¶] The father is incarcerated and unable to make appropriate arrangements for the care of his child. [¶] The father has a history of drug abuse that interferes with his ability to adequately meet the needs of his child. [¶] The father is a registered sex offender. [¶] The mother has a history of drug abuse that interferes with her ability to adequately meet the needs of her child. [¶] The mother has poor impulse control and explosive fits of destructive rage.”

Under “Family’s Perception of Their Needs,” the social worker noted: “According to the father he is currently in custody pending the disposition of his... criminal charges, and until the court hears his case, he will not know if he will be available to actively participate in services. He further indicated that he is willing to complete all court ordered services, but does not take any responsibility for the circumstances that led to his son’s detainment. The mother acknowledged that she has problems controlling her anger and difficulty with her impulse control. The mother is attending AODS appointments and attempting to cooperate with the requests of the Department. On October 2, 2006, the mother told social worker John Griffith that she wanted a referral to an in-patient drug treatment facility.”

The social worker further noted that Father “has stated that he is willing to do whatever is necessary so that his child may be returned to his care. [Father] stated that ‘[Mother] is crazy,’ and he will leave the relationship if it is necessary for reunification to occur.” As for Mother, she “stated she did not know why she should participate in services because she did not believe that her child would ever be returned to her care. [Mother] continues to doubt that reunification will occur, but she is participating in services and has an overall more positive attitude in interacting with Departmental staff.” “Due to the father’s pending criminal case and the instability of both parents there were no reasonable efforts available to the parents that if offered would allow the minor to be returned to either parent’s care.”

The Department’s placement recommendation is sufficiently important that it deserves to be quoted in full, with minor grammatical corrections:

“The paternal grandparents... have requested that the minor be placed in their care. The [Grandparents] have stated that they will cooperate with the Department during the reunification process and are willing to have their grandson placed permanently in their care should reunification fail. Given parents’ chronic addiction to drugs, [Father’s] incarceration, and [Mother’s] own child abuse history coupled with her severe anger management difficulties, the prognosis for reunification is poor. As a result, the Department assessed not only the grandparents’ current willingness and ability to care for the minor, but also their long-term ability to raise their grandson to adulthood. Although the Department does not doubt the grandparents’ love for their grandson or their sincere desire to provide him with a home, it is the assessment of the undersigned that placement with them is not in the best interest of the minor.

“Based on a thorough assessment that included a live scan of each applicant, an evaluation of the home environment, as well as an in person interview with the grandparents, the Department opposes placement with the grandparents. Following is a detailed outline of the Department’s ongoing concerns regarding the minor’s placement with his paternal grandparents.

“According to [Grandfather] the Veteran’s Affairs Office has determined that he is 100% disabled due to a diagnosis of Post Traumatic Stress Disorder... with resultant migraine headaches. [Grandfather] stated that his disability is the direct result of a four year tour in Vietnam. According to [Grandfather], since 1977 he has had years of trial medications to treat his ongoing symptoms that included severe depression that, at times, disabled him to the point that he found it difficult to get out of bed. Although he has been prescribed Prozac for the last year with beneficial results, he suffered from twenty-nine years of disabling symptoms without relief. [Grandfather] has indicated that he is currently doing well, but the undersigned remains concerned that his debilitating symptoms may reoccur. It is also important to note that [Grandfather] is a chain smoker, and according to ER Social Worker John Griffith, had to leave visits with his grandson every few minutes to go outside to have a cigarette.

“[Grandmother] suffered a shattered ankle approximately a year and a half ago and is currently confined to a wheel chair. However, by report she will begin physical therapy in the near future and is hopeful of regaining her mobility. [Grandmother] has indicated that she will require another surgery, but not for approximately five years. Given that the minor is a very young child [i.e., just over six months old at this time] and soon to be an active toddler, the Department is concerned about [Grandmother’s] ongoing ability to care for her grandson.

“Also of concern is the [Grandparents’] apparent ‘stretching of the truth’ regarding their housing situation. At the time of the minor’s detention in September of 2006, [Grandfather] told social worker John Griffith that he and his wife lived with his wife’s mother, [C.T.] and that the home was appropriate for the minor. However, on September 27, 2006, the father’s maternal aunt... informed Mr. Griffith that [Grandparents] had been dishonest with the Department as they were actually residing in a small travel trailer outside of [C.T.’s] house. [The maternal aunt] further stated that her daughter, son-in-law and granddaughter resided in the house with [C.T.], not [Grandparents]. On October 27, 2006 the undersigned verified that the [Grandparents] recently moved into the home with [C.T.] after the above named relatives moved out. [C.T.] did indicate to the undersigned that [Grandparents] (her daughter and son-in-law) and the minor are welcome to reside in her house as long as necessary. Although [Grandfather] continues to state that he and his wife have resided in this home for six months and that [the maternal aunt’s daughter] and her family moved out five months ago, social worker Griffith confirmed though CalWorks that this was not the case. Although the [Grandparents] currently have appropriate housing for the minor, it remains concerning to the undersigned that not only did they recently obtain this housing, but that they lied in order to give the deceptive appearance of stable housing.

“Additionally, [Grandparents] stated that when [Mother] was pregnant with the minor that she and their son... resided with them in a home they were in the process of buying. According to [Grandparents], [Mother] and [Father] fought continuously and treated each other badly. As a result, [Grandfather] stated that he and his wife ended up ‘walking away’ and losing their home in order to force their son and [Mother] to find alternate housing and take responsibility for themselves. The undersigned questioned [Grandparents] as to their ability to protect the minor from the parents when they were unable to ask the parents to leave their home rather than move out themselves. In response, [Grandfather] indicated that taking care of his wife who was non-ambulatory and wheelchair bound, taking care of the residence, and dealing with [Mother’s and Father’s] ongoing battles was overwhelming so they forfeited the home they were buying and moved out. Although the undersigned understood their reasoning, it adds to an ongoing concern of [Grandparents’] overall stability.

“[Grandparents] indicated to the undersigned that prior to the Department’s detention of their grandson, they had serious concerns regarding ‘[Mother’s] outbursts’ and the volatility of [Mother] and [Father’s] relationship. They additionally indicated that for a few weeks prior to their grandson’s removal by CPS, neither of them went inside their son’s home because they suspected that [Father and Mother] were using drugs. Despite their concerns, and their knowledge that their grandson was underweight, neither of the grandparents interceded on the minor’s behalf by informing law enforcement, making a referral to the Department and/or offering to care for the minor as a protective measure.

“It is the totality of these concerns in conjunction with the young age of the minor and the poor prognosis for reunification that contraindicates placement with the grandparents. However, the Department has made a referral to State Adoptions so that a concurrent plan can be developed in accordance with state law. Additionally, the Department is committed to encouraging a continued relationship between the grandparents and their grandchild through on-going visitation.”

The social worker’s “Assessment/Evaluation” was that “It is difficult to assess prognosis for reunification as the father has criminal charges pending that could result in his inability to reunite with his child within six months. The mother’s behavior is extremely volatile and poses a risk to her son. As a result it is imperative that she participate in therapy to overcome the emotional trauma she suffered from historical abuse before she will be able to provide her child with a safe and secure environment. Additionally, both parents have chronic histories of drug abuse requiring intervention before reunification could occur. For these reasons the recommendation for Family Reunification services to each parent while the child remains in out-of-home care is necessary and appropriate to protect the child and promote his best interests.”

When the dispositional hearing commenced on November 6, Mother, Father, and Grandparents were present. Although Father had apparently not been sent a copy of the dispositional report, he and Ms. Evans told the court they did not have a problem with it and were prepared to submit on it. Mother had also not seen a copy of the report before the hearing, so the court told her counsel “We’re going to trail this, Mr. Wiley, and take someone else’s case in the interim to give you a little more time to talk to your client about it.”

When the court returned to the matter, Mr. Wiley advised the court that Grandfather, who had not seen a copy of the report, was “very upset because the child is not placed with him.” After the matter was again trailed, Father asked to court for “time for his parents to get a lawyer” and investigate they could be declared de facto parents, thus qualifying for court-appointed counsel. The court agreed, and continued the hearing to November 20.

The dispositional hearing resumed on November 20 with Father and Grandparents present; Mother was not. The first matter resolved was that the Grandparents had consulted counsel and were not applying for de facto parent status. Next, Father, who “is supposed to get out of custody in January,” indicated that he was willing to submit on the disposition report. “[T]he only thing that he’s requesting is that we have the six-month review before April the 15th” so that he could be at Charles’s first birthday.

Next, Grandfather took the stand to refute many of the negative assertions in the disposition report. He testified his chain smoking was caused by his claustrophobic response to the small room in which he visited his grandson: “They put me in a little room nine by twelve and they expect me to sit there an hour, I’m sorry, Your Honor, there’s two-thirds of the people in the United States that have claustrophobia. What is wrong with that? [¶] And, yes, I smoke cigarettes. I walked outside to have a cigarette because I’m claustrophobic, and I relieve my tension this way. So I do not see where CPS thinks my PTSD is dangerous to my grandson.” Grandfather testified he has learned to deal with his PTSD. “It makes me very nervous and upset,” but when upset “I go out and yell my head off or take a walk. I went to therapy for many months to make sure that I couldn’t hurt myself or somebody else.” He and Grandmother are joint tenants of the C.T. house and have been for four years. They are taking care of C.T., his mother-in-law, and have been for a number of years. As for smoking there, “I walk outside or I have a room to myself for smoking in.” He has not anything in the past ten years to hurt himself or anyone else.

Grandfather further testified that he had walked away from the home they owned to force Mother and Father to be on their own: “I told them we were moving and that it was time for them to find their own place, so I guess I did ask them to leave.” In addition, he and his wife had to move to C.T.’s house to take care of her and his wife. Yet another reason was that he suspected Father was selling drugs out of the house. The Grandparent s moved into the trailer behind the house because “There’s an add-on on the trailer, and... when we thought we had a chance of getting the baby, we moved into the add-on as a bedroom, so the baby would have its own room.” But he did not tell the social worker that he and his wife were living in the trailer. Finally, Grandfather testified that he and his wife have been married for almost 31 years. They have the financial resources to raise their grandchild, and, if necessary, pay for college.

After all the parties submitted on the report, the juvenile court adopted the findings and order recommended by the Department. One of those findings was that “The department has inquired of the parent(s)/relative(s) whether the child is or may be an Indian child. ICWA does not apply.” Charles was declared a dependent child. The court adopted the proposed case plan for the parents, and ordered reunification services be provided to them and Charles. Custody was given to the Department for placement in a foster home. Visitation was ordered weekly for grandparents; weekly but supervised for Mother; and, for Father, “weekly, supervised visitation only after he has been released from custody.” The court admonished Mother and Father that their parental rights could be terminated if, within the six-month reunification period, they did not “make a full, strict and complete success” with their case plan. A six-month status review hearing was set for April 9, 2007.

In its status review report for the six-month review, the Department recommended that Mother be given an additional six months of reunification services, primarily because she had entered a residential treatment program in January 2007. “[S]he has made significant progress and has made diligent efforts to maintain her new lifestyle and is committed to reunifying with her son given the Court adopts the recommendation of granting an additional six months of reunification services.” The Department recommended terminating reunification services to Father “due to incarceration thereby prohibiting active participation in services.” The social worker explained that Father was about to be sentenced on the drug charge(s), and, according to the district attorney, “is expected to serve time in prison.” In light of these circumstances, “return of the minor” to his parents “is not appropriate or in the best interests of the child at this time.” Charles was progressing well in foster care. He “is currently placed in a pre-adoptive placement and the current caregivers are willing to adopt the child if family reunification fails.” The social worker recommended that the juvenile court find that Charles’s “placement in the licensed foster home is necessary and appropriate” because “return of the child to the parent would create a substantial risk of detriment to the child.” Additional recommended findings were that “progress made on the part of the mother toward alleviating or mitigating the causes necessitating placement has been good,” while Father’s progress “has been poor.”

The report noted that Father was “arrested for possession of a controlled substance for sale and possession of a controlled substance,” but it did not specify whether Father was facing multiple charges.

When the six-month review commenced on April 9, 2007, Mother and Grandparents were present, but Father was initially absent due to his incarceration. His counsel, Ms. Evans reported to the court that Father would be sentenced on April 16 and “he will probably be doing seven months in state prison.” Ms. Evans advised the court that Father would “not... contest... that he’s not getting services,” but she requested a two-week continuance. After the court continued the hearing to April 13, Grandfather was allowed to address the court.

Grandfather began with “a complaint against CPS” because he and Grandmother had “been denied visitation rights. They’ve made appointments and canceled each month.... As of the 22nd it will be four months since we’ve seen the grandchild.” Counsel for the Department stated that “The child’s been sick a couple of occasions so they had to cancel visits,” at which point the court directed that “the CPS worker who’s involved in this case will attempt to set up a visitation as soon as possible.”

Although it is not established by the reporter’s transcript, the court apparently directed the Department to provide the Grandparents with an explanation of its reasons for not recommending placement of Charles with them. The Department did so by forwarding to Grandparents those portions of the disposition report quoted above. The information gathered by the Department, and its recommendation, was put in a “Report and Recommendation of the Department of Social Services Regarding Relative Placement.” The report was dated April 11, 2007, and filed the same day.

Mother, Father, and Grandparents were present when the review hearing resumed on April 13. Mother testified that she was homeless for a period after her child’s detention, which was one of the reasons she enrolled in the treatment program. At the program, Mother has stopped using drugs or alcohol, and she attends AA and NA meetings “pretty much every night.” Her visitations with her son have increased in the program because “He’s brought to the house.”

After hearing very brief argument and comments from the various counsel, the court ruled that it “adopts the proposed findings and orders set forth in the review report,” and “also agrees with and adopts the Department’s position in terms of the relative placement request by the paternal grandparents as set forth and addressed in the April 11 report.” Thus, the court ordered additional reunification services for Mother, terminated them for Father, and set the 12-month review hearing for October 9, 2007.

Mother’s improved situation did not last. At the end of July, the Department advised the court that Mother was ejected from her treatment program and could not be located. Based on these changed circumstances, the Department asked that the court terminate further reunification services for her; halt parental visitation; and begin the process for determining a permanent plan for Charles. In the interim report it prepared for the court, the Department noted that Father was now “serving his sentence at San Quentin State Prison and his expected release date is 2010.” With the court’s approval, the Department made its request the subject of a formal motion under section 388 to modify the orders made at the conclusion of the April review hearing. The moving papers noted that the attorneys for Mother, Father, and Grandparents disagreed with the motion.

The Department’s motion was the subject of a brief hearing held on July 30, 2007. Counsel for Mother and Father were somewhat at a loss for what to say because of their respective client’s situation. Grandfather asked the court for “a few more visits” than the “once a month” visits he and Grandmother then had. Counsel for Charles opposed this request, on the ground that “this case is likely heading towards adoption, and I think it would be counterproductive to increase the amount of visitation.” The matter was apparently resolved informally. The court then adopted the findings and orders recommended by the Department. Services to Mother were thus ended, and the Department authorized to prepare an assessment for the child’s permanent placement. A hearing pursuant to section 366.26 was set for November 26, 2007.

In addition to opposing the Grandparents’ request, counsel for Charles also stated: “I would also request... that visitation that [Grandfather] be present each time, because apparently part of the problem with the baby is the baby likes men better.” The court urged that Grandfather keep himself “personally available” for each visit; if that was not possible, the visitation dates could be modified. This seems to have been acceptable to all.

Mother and Father were notified of the results of the hearing by mail and publication. The mailing also advised the parents of their right to challenge the orders by filing a petition for an extraordinary writ. Only Father started the process, but he failed to finish it. On September 12, 2007, this court filed an order stating: “The filing of the record in this matter is stricken for failure to timely file a petition for extraordinary within the time allowed by California Rules of Court, rule 8.452(c)(1). [¶] The failure to file a timely petition shall preclude any subsequent appellate review of the order setting a hearing under Welfare and Institutions Code section 366.26 (Welf. & Inst. Code, § 366.26, subd. (l)).” (George N. v. Superior Court (A111881).)

The hearing pursuant to section 366.26 was originally set for November 26, 2007, to consider the Department’s recommendations that Mother’s and Father’s parental rights be terminated, and a permanent plan looking to Charles’s adoption be approved. Before that date, however, there were several developments.

On November 2, Mr. Wiley was relieved as Mother’s counsel and Ms. Ocean appointed. Four days later, the court received a letter from Father stating that he had “an out Date of 5-26-08,” and wanted “to become the father my son needs... with CPS and the courts help.”

On November 16, the Department filed its “366.26 WIC Report.” Mother’s whereabouts were still unknown. Charles was described as doing very well in the foster home where he had been since his detention. “[T]he foster parents create a stimulating environment for Charles, including dogs, cats, ponies and other farm animals. Charles is also learning from all his ‘brothers and sisters.’ ” “Charles is part of a large family unit, and is the ‘baby’ of his family. He has older ‘brothers and sisters’ to play with and relates well to all of them. There is always someone to kick a ball to, or run and play with. Charles has thrived in this family environment. He enjoys all the attention, and is learning from everyone in this rather large extended family. Charles is healthy, happy, and very much a big part of this family.”

The child’s contacts with Mother, Father, and the Grandparents were described as follows: “The child... has had no visitation with his mother... since July 16, 2007, and has had no visitation with the presumed father... as he remains incarcerated.... Since the last hearing, Charles has had monthly supervised visits with his paternal grandparents.... Most of these visits have been at Library Park in Lakeport, as Charles does not do well in the visit rooms at the Children’s Protective Services office since the... visit with mother in July. The foster mother has also attended these visitations, as Charles behaves better and does not cry when she is there. Although Charles does play with his grandfather,... he does not relate at all to his grandmother. He will smile at her and let her take his picture, but he will not let her touch him. After the visits, Charles is not at all distraught about leaving his grandparents and is more than ready to go home with his foster mother. Additionally, Charles does not appear to benefit from visits with his grandparents.”

Grandfather conceded at the next hearing that Charles “relates to me. Yes, he don’t relate to my wife.”

The social worker supported his recommendations with the following “Assessment/Evaluation”: [¶] Charles is an energetic, healthy toddler who has overcome the neglect he suffered in his early months. The foster parents have to be given much credit for this, as they provide a loving, nurturing environment for Charles and all their children. There are other foster and adopted children in the home, and there is a large extended family of older siblings and grandchildren who live outside the home but are very much a part of Charles’s life. Charles has thrived in this environment, and is provided positive stimulation by the other children, the variety of animals on the property, and by the socialization he gets by attending his ‘siblings’ ’ football games, soccer games, and other sports activities.

“Charles is loved and allowed to run and play in this home, but there are also strict boundaries for his behavior. Charles does not have any specific responsibilities around the house due to his age, but he is expected to be respectful, to share and to follow simple rules. Charles’s behavior reflects these boundaries. Although he is shy around people he does not know well, especially women, the undersigned has seen him run to embrace the foster parents’ grandson, a young man in his late teens, when he comes to visit his grandparents. Charles is definitely a big part of this family.”

Attached to the Department’s report was an adoption assessment prepared by Adoptions Services Bureau of the State Department of Social Services. The gist of the report agreed with the Department’s assessment. The state report noted that the foster parents were “certified foster parents” and that “they do wish to adopt Charles.” “The adopting [sic] father is 62 years old... and is employed in the field of sales. The adopting [sic] mother is 62 years old... and is currently self employed in a business that allows her to work from home. [¶] The adopting parents have been married for over 40 years.... [¶] The adopting parents have had recent medical evaluations and a physician has indicated that neither parent [sic] has any condition that would be expected to impede his or her ability to parent adequately. [¶] The adoptive family has an exceptional internal support system. The prospective adoptive parents have several adult children (ages ranging from age 20 to mid-40s) who are actively involved in Charles’s life, and who are able and willing to step forward as legal guardians to Charles in the future in the event of the death or disability of the prospective adoptive parents.

“[¶]... [¶] Other members of the household include five adopted children, and another child placed for the purposes of adoption. Aside from Charles, there are six other children in the home: four girls and two boys. Some of these are adult adopted children, and ages of the ‘children’ range from approximately 8 to 20 years. [¶] All members of the household are reported to be healthy and developing satisfactorily. This is a very active family. Education is highly valued and all of the children are progressing well in school. Each child is also encouraged to actively participate in extra-curricular activities and is supported in their involvement. All family members have accepted Charles as a full member of the family.”

At a brief hearing on November 26, the court continued the hearing to January 14, 2008, so that Father, who had been moved from San Quentin to a different prison, could attend.

On December 17, 2007, the court held a hearing to address “the request of... the paternal grandfather... concerning possible relative placement.” Grandfather began by protesting the fact that the Department had told the Grandparents that visitation with Charles was going to be ended immediately, presumably in anticipation of the termination hearing. The court ordered that “Continued relative visitation will occur.... And given the holidays coming up... the Department should make some additional time available” The court also directed the Department to provide Grandparents with a copy of its latest report.

Three days before the January 14, 2008 hearing, the foster parents moved to be appointed Charles’s de facto parents. The hearing was continued to February 8.

The Grandparents were present at the January 14 hearing, as were Charles’s foster parents; Mother and Father were not present. Mother’s counsel was absent due to illness, which led the court to continue the hearing to February 8. Another paternal relative, cousin C.M., told the court that although she had met Charles for the first time two weeks ago, she was interested in adopting Charles, and that the state adoption worker said to her “I was not going to be considered... because they didn’t want to disrupt Charles’s current plan.” The court asked her to “come back... [and] be placed under oath with all attorneys present.” The Department was directed to file a supplemental report. At this point Father appeared in the courtroom, advised the court that he was in a prison rehabilitation facility, and “I’m currently getting out in May.” He requested that “temporary custody” of Charles be given to “a family member.”

The following day, January 15, the Department notified the Bureau of Indian Affairs in the Department of the Interior that Charles might be an Indian child under the Indian Child Welfare Act. (25 U.S.C. § 1901 et seq. (ICWA)) Both Father and Grandfather claimed possible ancestry in three Cherokee tribes, three Choctaw tribes, and one Blackfeet tribe, going back the “paternal Great-Great Grandfather.” The Department sent notices to each of the seven tribes. The Department provided Father with a Judicial Council “Parental Notification of Indian Status.” On it, Father stated “One or more of my parents, grandparents, or other lineal descendants is or was a member of a federally recognized tribe.” But after “Name of tribe,” “Name of band,” and “Name and relationship of ancestor(s),” Father answered “unknown” three times.

Father acknowledged on the form that “A previous form ICWA-020 has not been filed with the court.”

On February 1, the Department filed another “Report and Recommendation... Regarding Relative Placement of Minor.” The social worker who prepared the report stated: “Charles has been with his foster/adoptive family for over a year, is extremely bonded to this family, and is happy and secure. Charles is so attached to his foster mother that during monthly visits with the parental grandparents, or with the undersigned, he is uncomfortable if she is out of his sight, and he is constantly looking to her, no matter who is trying to interact with him. Although the paternal grandparents try hard to interact with Charles, his bond is with his foster parents. It would be detrimental to move Charles out of this family environment.”

In addition, the social worker also explained how the ICWA issue had now become an issue: “The paternal grandfather stated at the December 17, 2007 hearing that he has Indian Heritage. This has been taken into consideration by the Department, even though at detention, in an interview with Social Worker John Griffith on or about 9/20/2006, the paternal grandmother stated that neither she nor the paternal grandfather have any Indian Heritage. [See fn. 2, ante.] In an interview with the undersigned on or about 1/11/2008, the paternal grandfather stated that he had been made aware that he might be receiving an oil inheritance from some of his relatives, which included some members of an Indian tribe in Arkansas. He stated that he believed his grandmother or great grandmother was [one-half] Choctaw and [one-half] Blackfoot Indian, and that his grandfather or great grandfather was [one-half] Cherokee. He stated that he was not sure of the generation, or the names of his great grandparents, but that his family was doing a lot of research and he would let the undersigned know as soon as he had more information.”

No such statement appears in the reporter’s transcript of the December 17 hearing.

Attached to the report was a letter, dated January 31, 2008, in which the state adoptions worker stated that the California Department of Social Services (CDSS) “continues to be of the opinion that adoption is the appropriate permanent plan for Charles, and that he should remain in the care of his current caretakers, who wish to adopt him.... Additionally, CDSS is of the opinion that... removal from the current foster parents would likely be seriously detrimental to the minor’s emotional well-being.”

On February 5, the Department forwarded to the court “the Declaration by Percy Tejada, Indian Expert Witness.” After reviewing his qualifications and experience “as an ICWA expert witness,” and the documents he had reviewed, Mr. Tejada stated: “The paternal grandparents... have requested placement but the department assessed not only the grandparent’s [sic] current willingness and ability to care for the minor, but also their ability to raise their grandson to adulthood, and the conclusion was in the best interest of the minor child not to place with the paternal grandparents. It is my opinion that because of the late notification of Indian Ancestry of the family, and lack of response from all tribes that might be affiliated with the child, and absent input from the tribe but following the recommendation of the ICWA, this case meets the standard of compliance [with the ICWA]. However when and if a Tribe comes forth, collaboration for placement options becomes a priority.... The placement of Charles with the current foster/adopt family is appropriate and meets needs of the child.”)

Mr. Tejada also addressed the matter of how the Indian ancestry issue came up: “On or about 1/11/2008 social worker Nancy Tiedeman... talked to [Grandfather] about the Indian heritage he told the court he had. He said that he has an oil inheritance from his Indian relatives and that his grandmother or great-grandmother was [one-half] Choctaw and [one-half] Blackfeet, and his great-grandfather was [one-half] Cherokee. [Grandfather] was not sure of the generation and gave the social worker the name of [V. N.C. ] as the PGM [paternal grandmother?]. On or about 1/23/08 during a telephone call between social worker Nancy Tiedeman and [Grandfather] he stated he knew the Indian heritage came from his paternal grandmother [S.N.]. He also stated her maiden name was either [J.] or [C.], he didn’t know which. He stated that his sister is researching the family because it seems as though there is an old oil inheritance from the Indian side.”

Due to Mother’s and Father’s situations, Mr. Tejada agreed with the Department that “it is in the best interest of the child... to move forward with a permanent plan of adoption.”

Present at the February 8 hearing were Father, Mr. Tejada, the foster parents, and the Grandparents. Without objection, the court granted the foster parents’ request for de facto parent status. H.B., Father’s sister, testified that when Charles was detained, she called social worker Griffith and told him “I would be here to do whatever they wanted me to do to try to get Charles placed in my home.” When she called CPS before Christmas, she was told “I waited too long and that... it was not possible.” H.B. is married and has two children.

Grandfather testified that “Since they first started this trial I have fought to have Charles put with a family member. I have brought it up over and over in each court.” He also told the Department of other relatives who were willing to have Charles placed with them. Grandfather was still resentful at the perception that “I stretch things” and was viewed as a liar by the Department. Even if Charles is adopted by his present foster parents, who have “done a wonderful job with my grandson,” Grandfather still wants to have visitation with him. Grandfather further testified that he did not believe that the Department has tried to place Charles with a family member.

C.M. described herself as an “extended cousin” of Charles, that is, Grandfather is “my mother’s cousin.” She told the Department in August of 2007 that she was interested in having Charles placed with her, but was told that Charles’s “adoption was almost complete... that it was essentially a done deal so... there was nothing I could do.” In subsequent conversations with the Department, C.M. was not asked whether she was interested in adopting Charles Nevertheless, “I told them I was interested in information on adoption for Charles. They told me it was too late.” C.M. is a registered nurse; she has four children and is not married.

After C.M. finished testifying, the court stated “at this stage there’s no basis for changing the placement.” The court’s reasoning followed:

“The Court has some sympathy for the relatives and trying to deal with the system overall, but—and I know that the grandparents were I believe present from the very beginning, other than the mess up or whatever occurred about the initial—the trailer, etc. [Grandfather] on the stand... jangled my memory as to that.

“There’s differing views... obviously of how that came down; but in any event, at this stage there’s no reason to force a placement to an extended relative or other relative. [¶] In fact, under section 366.26(n)(1) the child being detained September 20 of ’06, by the time the aunt [i.e., H.B.] was suggested or introduced in April of ’07 the six months had essentially run at that stage... and August of ’07 was nearly a year. [¶] So the present caretakers had already had the status set forth in that section as prospective adoptive parents by the time these relatives were even introduced.”

The reference to six months is to the statutory directive that at that time, specified that reunification services shall be provided “[f]or a child who, on the date of initial removal from the physical custody of his... parent... was under the age of three years of age, court ordered services shall not exceed a period of six months from the date the child entered foster care.” (§ 361.5, subd. (a)(2).) The caretakers’ status and subdivision mentioned refer to the statute governing the termination procedure: “[T]he court, at a hearing held pursuant to this section... may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months [and] the caretaker currently expresses a commitment to adopt the child....” (§ 366.26, subd. (n)(1).)

The court then stated that “we’re now onto the.26 hearing.” Counsel for the Department requested “that the court move forward with the substantive part of this hearing today but then perhaps continue... the hearing to a different date, perhaps March 24, to solidify the ICWA notices, review any additional returns that have come in, so that that issue can be fully disposed of as well as to provide any tribes given notice the opportunity to intervene prior to the order terminating parental rights becoming final. [¶] It would also allow this court if no tribe does take a position to intervene or to declare the children as Indian children would allow the court to enter a finding that the ICWA does not apply, although at this point in an abundance of caution we would like to proceed in compliance by calling Percy Tejada.”

The parties stipulated to Mr. Tejada’s “basic qualifications as an Indian expert witness under the Indian Child Welfare Act and California Rules of Court.” He testified that he knew of “the prevailing social and cultural standards” of the tribes from which Charles might have Indian ancestry. Indian tribes differ from “prevailing child rearing practices” in American society as whole in that they “tend to have support relatives, extended relatives, aunts, uncle[s], grandmas, grandpas, cousins participate.” “[A] child will learn some upbringing lessons of life from the extended relatives; and that’s how important the role is of extended relatives in the Indian community is that every one of the people of the family has something to offer the child.”

The ICWA provides that “[a]ny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. (25 U.S.C. § 1912(d).) It further provides that “[n]o termination of parental rights may be ordered in such a proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent... is likely to result in serious emotional damage to the child.” (Id., § 1912(f).) Rule 5.484(b) of the California Rules of Court authorizes a juvenile court to consider “[t]he extraordinary physical or emotional needs of the Indian child as established by a qualified expert witness” in placing an Indian child.

Asked on direct examination by the Department’s counsel “Is there anything that you’re aware of that showed some culture bias of say CPS in terms of applying mainline standards that transgressed Indian values in the removal of this child?”, Mr. Tejada replied, “No, not that I could see at all.” He testified that “continued custody of the child by the parents is likely to result in serious emotional or physical damage to the child.” There was no cross-examination by counsel for Charles, Mother, or Father, nor did any of these parties have any witnesses or evidence to present.

The court then ruled: “With the exception of the request by the Department to continue the.26 hearing portion related to Indian Child Welfare Act notices” to March 24, “The court otherwise adopts the findings and orders set forth in the 366.26 report.” The court found that “by proof beyond a reasonable doubt that continued custody of the child by the parents is likely to result in serious emotional and physical damage to the child.”

After his counsel Ms. Evans told the court that “my client is going to be out in 90 days,” Father complained that “I don’t understand why I can’t have reunification with my child... since I’ve been incarcerated.” When, in response to a question from the court, Father said Charles “will be two in April,” the court replied: “I think there’s your answer. Your child is growing up without you because you’re incarcerated because of your past problems. I think it’s very positive that you in fact have been clean, but how have you become clean, by being in custody? I think that’s positive, but the children can’t wait for the parents to grow up.”

At the March 24 hearing, the court again indicated that “there’s no basis to change the placement of the minor.” After being advised that one tribe had not yet replied to the ICWA notices, the court continued the hearing to April 21.

On April 11, the Department filed its “Report... Regarding ICWA Compliance and Eligibility,” in which it advised the court that all responses from the six tribes and bands sent notices “report that Charles is not eligible for membership in the tribe, or that he is not considered an Indian child by the tribe.” At the April 21, hearing, only Father and the foster parents were present. At his counsel’s request, the court filed a letter from Father.

The six tribes were: (1) the “Cherokee Nation of Oklahoma”; (2) the “Keetoowah Band of Cherokee Indians”; (3) the “Jena Band of Choctaw Indians”; (4) the “Choctaw Nation of Oklahoma”; (5) the “Blackfeet Tribe” and (6) the “Mississippi Band of Choctaw Indians.”

In the letter, Father protested his innocence of “negligently leaving Charles with his mother,” and attacked the Department for being “less than honest in their reporting.” Father also reproved the court for its comment that “the sole reason for my current length of sobriety” was his imprisonment, insisting that it was due entirely to his choice. Finally, Father stated “I do not feel that I have ever effectively been represented by counsel in this matter” because Ms. Evans “has consistently failed to keep my family apprised of the situation,” and because she declined “to instruct my family on guardianship procedure.”

Without argument from counsel, the court stated: “Based on all the evidence before the court, the court finds that the Indian Child Welfare Act is not applicable to the child in this case.... [¶] Despite the finding that ICWA is not applicable, the court also makes the findings that not only reasonable efforts were made, but active efforts were made,” and designated the foster parents as prospective adoptive parents. It adopted the findings and orders proposed by the Department, thus terminating all existing parental rights as to Charles.

The court then entered an order terminating Mother’s and Father’s parental rights. Separate notices of appeal were filed by Father, Mother, and the Grandparents.

DISCUSSION

Principles Of The Indian Child Welfare Act

Because it is central to several of the arguments advanced by the appellants, we deem it appropriate to consider the purpose and procedures of the ICWA. The ICWA was enacted in 1978 in order to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C. § 1902.) Congress intended to secure this goal by presuming “it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The ICWA thus establishes minimum federal standards, both procedural and substantive, governing the removal of children of Indian ancestry from their families. The ICWA has a preference for giving jurisdiction to the tribe, which has “the right to intervene at any point in state court dependency proceedings. (25 U.S.C. § 1911(c); [Citation].) ‘Of course, the tribe’s right to assert jurisdiction over the proceeding or to intervene is meaningless if the tribe has no notice that the action is pending.’ [Citation.] ‘Notice ensures that the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)

To ensure these rights, the ICWA specifies the following notice to the tribe: “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 child’s tribe, by registered mail with return receipt requested....” (25 U.S.C. § 1912(a).) The notice must include the following “if known”: “All names known, and current and former addresses of the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information.” (25 C.F.R. § 23.11(d)(3).) Unless a tribe expressly indicates that it has no interest in the state court proceeding, failure to comply with this notice requirement constitutes reversible error. (In re I.G., supra, 133 Cal.App.4th 1246, 1252; In re Desiree F., supra, 83 Cal.App.4th 460, 472.)

California has adopted a statute and a detailed rule of court to implement the ICWA. As relevant here, the rule provides: “The court, court-connected investigator, and party seeking a foster-care placement... or... termination of parental rights... have an affirmative and continuing duty to inquire whether a child is or may be an Indian child....” (Cal. Rules of Court, rule 5.481(a).) The statute specifies that “The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe. [¶] (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominately Indian community. [¶] (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service.” (§ 224.3, subd. (b); accord Cal. Rules of Court, rule 5.481(a)(5).)

The notice requirements have been described by several courts as a two step process to be followed by the social service agency: “First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 702-703; In re Asia L. (2003) 107 Cal.App.4th 498, 507.) When proper notice is not given under the ICWA, the court’s orders are voidable. (25 U.S.C. § 1914.)

A considerable part of the appellants’ arguments are predicated on the applicability of the ICWA to this dependency. That predicate is, in turn, based on the assumption that Charles qualified as an Indian child. That assumption rises or falls on the issues of the notices sent by the Department to the tribes once the possibility of Charles of having Indian ancestry was raised. It is to that issue that we now turn.

The Department’s Notices, Even If Belated With Good Cause, Were Proper And Given The Circumstances, Sufficient

Father contends that the Department failed to give proper and timely notice, and the juvenile court’s findings to the contrary are not supported by substantial evidence. Mother and the Grandparents join in this contention.

Father first faults the Department for failing to provide “some information which it was aware of regarding relatives,” and that the Department falsely represented that certain information was not available. The fastest and most effective way to dispose of these arguments is to remember some details of what information the Department did possess.

The ICWA issue did not come up until December 17, 2007. It is crucial to keep in mind just how far along the dependency was at that time. Commenced in September 2006, it had already progressed through the detention and initial placement; the jurisdictional and dispositional hearings; and the period of unsuccessfully attempting to reunify the family. In fact, matters had progressed to the point where the hearing had already been set to consider a permanent plan of adopting and the termination of parental rights.

We would ordinarily presume that the Department and the court had been complying with their independent and continuing duty to check whether Charles had Indian ancestry. (See Evid. Code, § 664; In re E.H. (2006) 141 Cal.App.4th 1330, 1334; In re S.B. (2005) 130 Cal.App.4th 1148, 1160-1161.) A corollary to this presumption is that when the family was asked, they responded with no indication that they had Indian ancestry. This is confirmed by the petition (see fn. 2, ante), and by the Department’s February 1, 2008 report, where the social worker recounted that “at detention, in an interview with Social Worker John Griffith on or about 9/20/2006, the paternal grandmother stated that neither she nor the paternal grandfather ha[d] any Indian Heritage.” (Italics added.)

The Department can hardly be faulted for accepting Grandmother’s statement at face value, a statement, it should be noted, that was not confined to herself, but also included Grandfather. The statement was categorically phrased, admitting of no uncertainty. Moreover, because the statement encompassed both Grandparents, it necessarily also excluded the possibility of Indian heritage descending to Father. There was never a suggestion that Mother had Indian ancestry. Thus, her statement could qualify as a definitive statement that there was no Indian ancestry on the paternal side of Charles’s genealogy.

Nevertheless, when Grandfather reversed course on December 17, with the dependency entering what looked to be its final phase, the Department did not treat the issue as closed. Although Grandfather’s statement was tentative (“he might be receiving an oil inheritance from some of his relatives, which included some member of an Indian tribe in Arkansas”) and noticeably vague on particulars (he believed his grandparents or great-grandparents had Choctaw, Blackfoot, or Cherokee ancestry, but “he was not sure of the generation or the names”), the Department promptly sent the requisite notices. And it surely merits our attention that when Father was provided the Judicial Council form for asserting Indian ancestry, he was not more informed than Grandfather as to the details of his ancestry. Thus, much of the “unknown” information was due entirely to Father and Grandfather.

Father asserts the Department should have included on the ICWA notices the name of C.T., Grandmother’s mother, because “she was the paternal great grandmother.” This makes no sense. Any Indian heritage would pass from Grandfather’s side, not Grandmother’s. Even the Grandparents’ change of position (see fn. 2, ante) did not suggest that any Indian ancestry descended from the Grandmother, something Grandmother had explicitly told the Department on September 20, 2006.

Father asserts the Department should have included on the ICWA notices the name of his sister, H.B., and a cousin. But this was not required by 25 C.F.R. § 23.11(d)(3), which does not include aunts, uncles, or cousins. True, the notice sent to the tribes does offer three spaces for “Other relative information (e.g., aunts, uncles, siblings, first and second cousins, stepparents, etc.),” but the three spaces were filled with the names of C.M. (described as “Paternal 2nd cousin”), V.N.-C. (described as “Paternal great aunt”), and Z.N. (described as “Paternal Great-Great Grandfather”). If none of the names of four generations was going to ring the bell, there is no logical reason why the name of Grandfather’s daughter and Father’s sister would.

Father faults the Department for not including Charles’s birth certificate, Grandmother’s parents, details as to Mother’s genealogy, and the name of Grandfather’s grandmother or great-grandmother. The most ostensibly damaging of these omissions is the last. However, federal law only requires the notice to include information as to “the Indian child’s biological mother, biological father, maternal and paternal grandparents and great grandparents.” (25 C.F.R. § 23.11(d)(3).) In this context, “great grandparents” would mean the parents of Charles’s grandparents. But Father is complaining about the omission of his paternal grandfather’s grandmother. That is more than the ICWA requires. Moreover, the ICWA notice form only has spaces for three generations, ending with the parent’s grandparents. Nevertheless, if the Department could provide the name of the paternal great great-grandfather, there is no reason the name of the paternal great grandmother could not have been added.

This court has held that “Substantial compliance with the notice requirements of ICWA may be sufficient under certain circumstances.” (In re I.G., supra, 133 Cal.App.4th 1246, 1252.) We believe this is the case here. The Department provided the tribes with sufficient information about Charles’s linear ancestors for the tribes to make an informed decision about whether to intervene or assert jurisdiction.

Father’s And Mother’s Arguments Attacking Trial Counsel For Conflict Of Interest Cannot Be Reviewed

As previously mentioned, at the very beginning of the dependency, Ms. Evans undertook to represent Mother and have Mr. Wiley represent Father. At the next reported hearing, it having become known that Mr. Wiley had represented Mother as a child, that Ms. Evans and Mr. Wiley would exchange their assignments so that Mr. Wiley would henceforth represent Mother, and Ms. Evans would represent Father. Father and mother now contend that these “clear conflicts of interest” tainted every subsequent stage of the dependency, and require reversal not only of the termination order, but also of “all previous findings and orders.” Grandparents join in this contention. We reject this contention for three reasons.

First, it is one of the most fundamental rules of appellate procedure that “A parent’s failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court.” (In re Elijah V. (2005) 127 Cal.App.4th 576, 582.) Neither Mother nor Father made a timely objection to the purported conflict of interest of which they now complain. Their contention is therefore treated as waived or forfeited. (In re Katrina W. (1994) 31 Cal.App.4th 441, 448; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

The second reason is related to the first. We have held that “The waiver rule as applied in dependency cases flows from section 395, under which the dispositional order is an appealable judgment, and all subsequent orders are directly appealable without limitation except for post-1994 orders setting a.26 hearing, which are subject to writ review [Cal. Rules of Court, rule 5.600] and related limitations (§ 366.26, subd. (l)). A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.] In other words, ‘A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.’ [Citation.] The rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’ through a parent’s attacks on earlier orders. [Citation.]” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355.)

Thus, even if Mother or Father had made a timely objection, the issue would only have been reviewable had either taken an appeal from the dispositional order. Because there was no appeal from that order, we cannot reach back to examine the issue at this late date.

The third reason is that even if the issue had been preserved for review at this time, the issue would be rejected on its merits. At the October 16, 2006 hearing, when the court learned that Mr. Wiley, originally appointed to represent Father, had previously represented Mother and was now asking to do so again, Ms. Evans was asked by the court whether she had “interviewed the mother already or not?” Ms. Evans responded “No,” because “I knew there was going to be this change.” We interpret this statement as a representation to the court that Ms. Evans, once she became aware of the problem, studiously avoided obtaining any confidential information from Mother during the brief period Ms. Evans represented her. Thus, there was no error in the court permitting the brief period of Ms. Evans’s representation of Mother. (See In re Katrina W., supra, 31 Cal.App.4th 441, 448-449.)

Finally, the only action Ms. Evans took while representing Father was to submit the detention issue on the social worker’s detention report. This was virtually a ministerial act under the circumstances. Moreover, once the court became aware of the situation on the date set for the jurisdictional hearing, it not only accepted the change of clients, it granted Father’s request for a continuance. In these circumstances, no prejudice has been established from Ms. Evans’s representation of Mother. (See In re Celine R. (2003) 31 Cal.4th 45, 59-60.)

For each and all of these reasons, we reject the claim of a prejudicial conflict of interest.

Mother’s Contention That Her Reunification Services Were Inadequate Cannot Be Reviewed

Mother contends “the provision of reunification services did not cure the fundamental undermining of the statutory scheme, and the Department did not provide services reasonably designed to address the problems that the Department said the Mother had to overcome to reunify.”

If Mother is attacking the planned reunification services, the time to do so was when the Department’s proposed case plan for her had yet to be adopted at the dispositional hearing and, if that objection was overruled, to raise the issue by appeal from the dispositional order. She made no such objection at the hearing and did not appeal. The issue was therefore not preserved for appeal. (In re Elijah V., supra, 127 Cal.App.4th 576, 582; In re Jesse W., supra, 93 Cal.App.4th 349, 355; In re Precious J. (1996) 42 Cal.App.4th 1463, 1476.)

If Mother is attacking the adequacy of the reunification services actually provided, the time to raise that issue was at the time the juvenile court was considering the Department’s request to terminate them and, if that challenge failed, to raise the issue by petitioning for an extraordinary writ to overturn the order setting the section 366.26 hearing, as provided by section 366.26, subdivision (l). Having failed to take either of these steps, the issue cannot be review at this time. (In re Janee J. (1999) 74 Cal.App.4th 198, 211-212; In re Kevin S. (1996) 41 Cal.App.4th 882, 885; In re Anthony P. (1995) 39 Cal.App.4th 635, 641.)

There is an additional ground that is akin to forfeiture. Courts have noted that reunification services cannot be forced upon a parent unwilling to take advantage of those services. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 442; In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1220.) As we recently held in a similar situation, the dependency scheme does not “mandate[] that reunification services be provided to an empty chair.” (In re Derrick S. (2007) 156 Cal.App.4th 436, 448.) By leaving the residential treatment program, and in essence voluntarily withdrawing from the reunification process, Mother will not now be heard to complain about the adequacy of the services she spurned.

Mother’s And Father’s Claims Of Ineffective Assistance Of Counsel Will Not Be Entertained, And, In Any Event, The Requisite Showing Of Prejudice Has Not Been Made

Perhaps anticipating that one or more of their claims might be held not preserved for this appeal, Mother and Father try to revive them in the guise of arguing that their respective counsel in the juvenile court were incompetent, so incompetent that their deficient performance amounts to a denial of due process because it undermined the integrity of the dependency scheme. Grandparents join this contention.

Mother and Father are invoking the exception to the waiver/forfeiture rule we discussed in In re Janee J., supra, 74 App.4th 198, where we analyzed at length language from In re Meranda P. (1997) 56 Cal.App.4th 1143:

“In circumstances similar to ours, the court in Meranda P. applied those familiar principles to bar a mother’s claims, on appeal from an order terminating parental rights, that she had been denied her right to counsel from the initial detention hearing until an 18-month review and that her counsel from that hearing forward had rendered ineffective assistance. The mother had not appealed from any prior order or sought writ relief from the order setting the.26 hearing. [Citation.] Meranda P. held: ‘The principle—which for convenience we will identify as the “waiver rule”—that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order is sound. We decline to carve out an exception to it here even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel.’ [Citation.] And weighing the interests, risks and benefits at stake in that context revealed no violation of due process in enforcing the waiver rule. Permitting a parent to raise issues going to the validity of a final earlier appealable order would directly undermine dominant concerns of finality and reasonable expedition [citation]; the risk of erroneous deprivation of the parent’s rights was diminished by the fact that error of this sort requires prejudice to be reversible [citation] and by the significant safeguards built into the system for any parent who may be unable to present an adequate defense [citation]. Enforcing the waiver rule also furthered vital policy considerations of promoting, at that late stage, the predominant interest of the child and state, preventing a sabotage of the process and preserving the legislative scheme of restricting appeals of final-stage termination orders. [Citation.] The parent, of course, also has the right to express concerns at any stage and take appeals or seek writ review along the way. [Citation.] Extending that rationale, Meranda P. held that the statutorily final and nonmodifiable orders in that case could not be collaterally attacked by a petition for writ of habeas corpus. [Citation.]....

“[¶]... [¶] Mother argues that the waiver rule as applied by Meranda P. to a.26 hearing appeal never allows review of trial counsel’s prior performance, no matter how deficient, and guts the dependency scheme’s guarantee of ‘competent’ appointed counsel (§ 317.5, subd. (a)), stripping away due process protection for a parent. We do not read Meranda P. nearly so broadly. The case reasons that late consideration of ineffective assistance claims defeats a carefully balanced legislative scheme by allowing a back-door review of matters which must be brought for appellate review by rule [5.600] writ at the setting hearing stage or by earlier appeals, that is, before the point is reached where reunification efforts have ceased and the child’s need for permanence and stability become paramount to the parent’s interest in the child’s care, custody and companionship [citation]. Thus, and this is the crux of Meranda P.: the waiver rule will be enforced unless due process forbids it. The case conceded ‘the critical role in ensuring an accurate and just decision played by a capable appointed counsel’ [citation] but noted ‘significant safeguards built into this state’s dependency statutes which tend to work against the wrongful termination of a parent’s right to a child even though a parent may be unrepresented or poorly represented’ [citation]. Those safeguards include a focus on return of the child during the reunification period, independent judicial review every six months, and notice to a parent of all proceedings and the right to counsel at all stages. [Citation] Thus in the usual case, application of the waiver rule will not offend due process. We agree.

“Furthermore, Meranda P. did not create an absolute bar to review of ineffective assistance, right to counsel, or other claims tardily presented on a.26 hearing appeal. Its exhaustive attention to the full dependency scheme and to the particular facts in the case before it attests to this. So does its initial conclusion about the waiver rule: ‘We decline to carve out an exception to it here even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel.’ [Citation.] Proof of case-specific flexibility is [In re Cathina W. (1998) 68 Cal.App.4th 716, 722-724], where the same court on another section 366.26 appeal entertained a mother’s claims of error at the setting hearing, reasoning that the mother’s failure to receive notice of her rule [5.600] review rights, plus other notice flaws, constituted good cause excusing her noncompliance with the writ procedure.

“We need not try to catalogue all circumstances that might allow relaxation of the waiver rule, but Meranda P. and Cathina W. imply guidelines. First, there must be some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole. Lack of notice of rule [5.600] rights was one such example in Cathina W. Second, to fall outside the waiver rule, defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed. To allow an exception for mere ‘reversible error’ of that sort would abrogate the review scheme (§§ 366.26, subd. (l), 395) and turn the question of waiver into a review on the merits. Meranda P. recognized that error unfavorable to a parent’s interests during the course of dependency may well prove irremediable [citation], yet applied the waiver rule anyway. Finally, it follows that resort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error is also not enough and that it is never enough, alone, to argue that counsel rendered ineffective assistance by not raising potentially reversible error on rule [5.600] writ review of a setting order.” (In re Janee J., supra, 74 Cal.App.4th 198, 206-209.)

Although both Mother and Father invoke the standard two-step inquiry—whether counsel failed to act in the manner expected of reasonably competent counsel, and whether the client was prejudiced, in the sense that there is a reasonable probability of a more favorable outcome—this is not the standard we applied in Janee J. There, we specifically held that we were addressing a species of defect that “must go beyond mere errors that might have been held reversible had they been properly and timely reviewed.... [R]esort to claims of ineffective assistance as an avenue down which to parade ordinary claims of reversible error is... not enough and that is never enough, alone....” (In re Janee J., supra, 74 Cal.App.4th 198, 209, italics added.) The defect must ascend to a qualitatively higher plain, one that “fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the [dependency] scheme as a whole.” (Id. at p. 208.) Thus, it is not enough simply to catalogue the acts or omissions of trial counsel that may be faulted from the leisurely contemplation of an appellate record. We were thinking of situations that in another context have been termed “structural error.” (See In re M.F. (2008) 161 Cal.App.4th 673 [termination order reversed because no guardian ad litem appointed for minor parent until after termination hearing had been set]; In re Jessica G. (2001) 93 Cal.App.4th 1180 [termination order reversed because juvenile court erroneously appointed guardian ad litem for parent before making dispositional order].)

Mother and Father cite a number of decisions where ineffective assistance of counsel was found on earliest appeal from an appealable order. (E.g., In re S.D. (2002) 99 Cal.App.4th 1068 [termination order reversed due to counsel’s jurisdictional mistake made at start of dependency]; In re Laura H. (1992) 8 Cal.App.4th 1689 [termination order reversed because of counsel’s performance at in camera examination of dependent at section 366.26 hearing].) These decisions are obviously distinguishable because we are here facing what partakes more of a collateral attack (Cf. In re Darlice C. (2003) 105 Cal.App.4th 459, 462 [parent allowed to seek habeas corpus to “collaterally attack an order terminating parental rights on the ground that the parent was not afforded competent assistance of counsel”].)

In light of the foregoing, we conclude that neither Mother nor Father has identified a systemic failure of such a dimension as to implicate due process by pointing to a defect that “fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the [dependency] scheme as a whole..” (In re Janee J., supra, 74 Cal.App.4th 198, 208.)

But that is what Mother and Father do. Thus, when Father faults trial counsel for not appealing the dispositional order, this is simply tautological boot-strapping—he should be excused from the waiver requirement because his counsel did not take an appeal. Allowing such an exception would obviously swallow the rule.

We do not propose to examine each of the supposed incompetent acts and omissions committed by counsel in the juvenile court. We do agree with the Department’s characterization that “many of the objections raised by appellants are non substantive [and] non-outcome determinative.” For example, both Mother ands Father jump on the fact the original petition was not verified as required by section 332. At this point in time, such an objection verges on the trivial. (See 4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 468, p. 599 [“Like other formal defects, lack of verification may be waived by proceeding... without proper objection”].)

But when Mother asserts that her counsel took ineptitude into constitutional incompetence by submitting at the jurisdictional hearing because “the allegations and evidence were insufficient as a matter of law,” this is too much. When Mother argues that “the only allegation and evidence that the child had suffered or was at substantial risk of suffering serious physical harm... was that the child’s weight was in the 10th percentile when detained and had gone up to the 25th percentile three weeks later, after a high caloric diet in foster care,” this defies belief.

Mother argues “At the time of the jurisdictional hearing, there were no grounds for finding that the child was presently suffering or [was] at substantial risk of suffering serious physical harm in the mother’s care,” and there were no allegations or evidence that her “problem with explosive anger had ever caused physical harm to the child.” The operative word here is “risk.” Actual harm is not a jurisdictional requisite.

“It is indisputable that there can be no greater intrusion by the state into the parent child relationship than bringing it to an absolute end. Yet this has been done without proof of overt harm to the child. Substantial likelihood is sufficient.... [¶] The parents’ contention would logically exclude legitimacy to state action which is intended to prevent harm. The idea that state action can be mobilized only after the fact is untenable. Power is not disabled from dealing with latent risk. The state, having substantial interests in preventing the consequences caused by a perceived danger is not helpless to act until that danger has matured into certainty. Reasonable apprehension stands as an accepted basis for the exercise of state power.” (In re Eric B. (1987) 189 Cal.App.3d 996, 1002-1003; accord, In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136 [“The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child”], disapproved on another point in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

To hear Mother’s version, one would never know that at the jurisdictional hearing the juvenile court took judicial notice of its file, and admitted the Department’s report in evidence, and heard testimony from three people: social worker Griffith, Father (who now insists his counsel should not have let him testify), and Grandfather. It was only then that that the court sustained virtually all of the more than a dozen allegations in the petition, including the ones addressed to Mother’s and Father’s actions and inactions endangering their child. The court was particularly unimpressed with Father’s claim that he properly supervised Charles: “[T]he Court finds it hard to believe that the father is leaving the child well supervised with a person who he doesn’t even know the last name of and who is adjudged to be under the influence of meth when the police arrive for one of the home visits.” And Mother seems unaware of the established principle that “ ‘a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent.’ ” (In re Alexis H. (2005) 132 Cal.App.4th 11, 16, italics added, quoting In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) It is not enough for Mother to present exculpatory evidence, and we doubt that any juvenile court in this district would have rejected the Department’s evidence in toto and dismissed every one of the petition’s allegations.

Appellate counsel faults Father’s trial counsel for allowing him “to testify at the jurisdictional hearing without first obtaining immunity... despite the fact that he was facing criminal charges.” No action by trial counsel was necessary because there is a statutory prohibition against using testimony from a dependency “in any other action or proceeding.” (§ 355.1, subd. (f).)

It is useful to consider the precise wording of the allegations sustained by the juvenile court:

And Mother’s voluntarily admitting herself to a residential treatment program, then failing to complete it, and thereafter choosing not to attend any of the court proceedings—apparently ending any possibility of communicating with her son—hardly lends support to her arguments that she was no more than a recreational user. Father’s subsequent admission that “I may have missed some red flag/warning signs” is hardly helpful or even credible. At best, it paints a picture of a father, who, himself having been diverted for “drug charges” (see fn. 4, ante) had no inkling of the mother’s substance abuse problems, and was oblivious to her physical appearance and the wreckage in their house caused by her fits of temper. Disbelieving that version does not evidence a subversion of the dependency scheme amounting to a violation of due process.

Both Mother and Father criticize their trial counsels for repeatedly “submitting” or “failing to contest” at the various hearings. To begin with, the practice in dependency cases of “submitting” on social agency reports is common. (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181 [section 366.26 hearing]; In re Richard K. (1994) 25 Cal.App.4th 580 [dispositional hearing]; In re Tommy E. (1992) 7 Cal.App.4th 1234 [jurisdictional hearing].) In any event, submitting does not necessarily end the matter.

Both Mother and Father simply “submitted” on the detention issue. Neither Mother nor Father submitted on the social worker’s report for the jurisdictional hearing, as evidenced by the fact that testimony was taken. Mother did not offer evidence, but Father testified, and the court heard from Grandfather. Neither Mother nor Father submitted on the Department’s recommendation. And while we accept that both submitted on the Department’s recommendation at the dispositional hearing, neither Mother nor Father submitted at the six-month review.

Whether out of all this there was still a ground for appeal is not an issue that has to be resolved here, for it is clear that their was no comprehensive acquiescence. We have already indicated that there was only a theoretical likelihood that Charles would not be declared a dependent child. The only real issue was Charles’s placement.

But a reality check is in order. It was obvious that Mother was unable to resume custody of Charles, and she never argued as much. Almost immediately after the detention hearing, Father was arrested and began his lengthy stay in the county jail. Everyone, even Father, accepted that this would result in a state prison sentence. In these circumstances, there was no conceivable chance that Father would get custody. There can be no doubt that Father’s family, particularly the Grandfather, kept the court aware of their abiding desire to see Charles placed with them. No act or omission of either counsel obscured that reality from the court.

On the other hand, Charles was now established in a very successful placement with the foster parents. Notwithstanding their unquestioned desire to do the right thing for their grandson, the Department had questions about the Grandparents’ ability to assume custody. The juvenile court heard the Department’s reasons for not recommending placement at that time with the Grandparents, and then listened to the Grandparents’ response. Indeed, Father acknowledges that the court actively urged the Grandparents to communicate to the court at the dispositional and the February 8, 2008 hearings. Moreover, the court continued the dispositional hearing in order that the Grandparents could consult counsel to determine if they wished to apply for de facto parent status. Thus, procedurally, the judicial decision-making process was close to flawless.

It is therefore surprising to have the Grandparents denounce the placement decision made at the dispositional hearing as “not an informed decision, since the social workers had concealed important information from the court,” specifically, “In addition to concealing information about Grandparents, the social workers also concealed information about other relatives who were interested in placement.” However, Grandparents do not actually accuse the Department of suppressing information about the Grandparents, but only reproach the social workers for having “failed to explain” why Grandfather’s smoking and post traumatic stress disorder, and Grandmother’s “temporary confinement to a wheelchair,” prevented them from getting Charles placed with them. The charge is utterly unwarranted.

Grandparents appear unwilling to recognize that the Department may have chosen to use diplomatic language to explain its decision not to recommend placement with them. This would account for doubting “their long-term ability to raise their grandchild to adulthood” and concern about their “overall stability.” Grandfather is described as “100% disabled,” suffering from migraines and “severe depression that, at times, disabled him to the point that he found it difficult to get out of bed.” The social worker was “concerned that [these] debilitating symptoms may recur.” While Grandmother is described as “hopeful of regaining her mobility,” the Department described itself as “concerned about [her] ongoing ability to care” for her “soon to be an active toddler” grandson. The Grandparents’ physical conditions were clearly enough for the social worker to doubt whether, while also caring for Grandmother’s mother, they were physically up to controlling Charles in the near future. The social worker was also fairly plain that the Grandparents had been unable to prevent Mother and Father from putting Charles at risk in the past, and might fail again in the future. We have no doubt that the juvenile court knew what the Department meant. In any event, the court listened to Grandfather at the dispositional hearing when he attacked the Department’s reasoning.

It is equally surprising to hear the Grandparents denounce the Department for misleading the court by concealing that “other relatives... were interested in placement.” Up until the dispositional hearing placement, all the court was told—by Mother, by Father, by the Grandparents, and by the Department—was that the family wanted to see Charles placed with the Grandparents. The Department had even arranged to provide the court with a second opinion by asking the state agency to examine the Grandparents’ situation. No other relative was mentioned.

In light of the foregoing, there is absolutely no basis for concluding that the juvenile court was unable, or failed, to make an informed decision on the issue of placement. Perhaps the issue could have gone either way, but that is not enough to overturn the court’s decision: “ ‘ “Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion.” ’ ” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867, quoting Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504.) “ [A] ‘ “decision will not be reversed merely because reasonable people might disagree.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.) Thus, if there had been a valid appeal from the dispositional order, we would not have reversed that decision as an abuse of discretion because leaving Charles’s placement with the foster parents did not exceed the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

We are not holding that no mistake was made by counsel or the Department. But any such mistakes did not disable the dependency scheme from working. Perfection it may not have been, but it is nothing resembling the systemic failure for which we allowed in Janee J. We are not presented with a comprehensive breakdown of the dependency process in the Lake County Juvenile Court that would evidence a violation of due process. “The Due Process Clause does not create a right to win litigation; it creates a right not to lose without a fair opportunity to defend oneself.” (Lane Hollow Coal v.Dir. OWCP, U.S. Dept. of Labor (4th Cir.1998) 137 F.3d 799, 807; accord, Consolidated Coal Co. v. Borda (4th Cir.1999) 171 F.3d 175, 184.) Father and Mother received that right. As for the Grandparents, they were entitled to no more than their son received. (See Troxel v. Granville (2000) 530 U.S. 57 [grandparents do not have due process rights greater than parents vis-à-vis grandchildren]; In re Stephanie M., supra, 7 Cal.4th 295, 324 [dependant child’s need for stability outweighs grandmother’s interest in maintaining family ties].)

The Juvenile Court’s Placement Decision Did Not Amount, To An Abuse Of Its Discretion

Father and Grandparents, joined by Mother, argue that the juvenile court abused its discretion when, having terminated Mother’s and Father’s parental rights, it refused to change the placement of Charles with the foster parents who wished to adopt him.

“We review a juvenile court’s custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.] ‘Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ [Citations.]” [Citation.]’ [Citation.]” (Alice B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

The most fundamental consideration is whether the placement made was in the child’s best interests. (In re Stephanie M., supra, 7 Cal.4th 295, 320.) “In any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citations.] ‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement could be in the best interests of that child.’ ” (Id. at p. 317, citing and quoting Burchard v. Garay (1986) 42 Cal.3d 531, 538.)

Although there are citations to the ICWA’s statutory preference for family placement (25 U.S.C. § 1915 (f)), we have already held that the juvenile court correctly determined that Charles did not qualify as an Indian child. Thus, the ICWA provisions are not applicable, and the arguments based upon them will be disregarded.

There is a disagreement as to the governing statute. Grandparents and Father look to section 361.3, subdivision (a), which directs that “In any case in which a child is removed from the physical custody of his or her parents..., preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” Subdivision (d) of the statute provides that “Subsequent to the hearing conducted pursuant to Section 358 [i.e., the dispositional hearing], whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child’s reunification or permanent plan requirements.”

On the other hand, the Department looks to subdivision (k) of section 366.26, which provides: “Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal from the relative caretaker or foster parent would be seriously detrimental to the child’s emotional well-being.”

Although the significance of this dispute is debatable, we agree with the Department that we should look to section 366.26, subdivision (k). The dispositional hearing concluded on November 20, 2006, considerably more than a year before the termination and placement hearing ended on April 21, 2008. Also, it could be argued that this was not a “new placement” within the meaning of section 361.3, subdivision (d). On the other hand, subdivision (k) of section 366.26 does have the support of its “Notwithstanding any other provision of law” language. Moreover, subdivision (k) has been applied when, as here, the reunification period has ended. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031-1032 and decisions cited; Cal. Judges Benchguide 104: Juvenile Dependency Selection and Implementation Hearing (CJER 2007) § 104.63, pp. 104-68 – 104-69.)

Both statutes make it clear that the “preference” is not substantive, but merely the right to be “the first placement to be considered and investigated” (§ 361.3, subd. (c)(1)) or the right to be “processed and... completed before the processing of the application of any other person for the adoptive placement of the child.” (§ 366.26, subd. (k).)

As we said, the point is academic because both the Grandparents and the foster parents had for all intents and purposes already been evaluated for Charles’s long-term placement. The discussion here need not be extensive, because much of the issue was addressed in the previous portion of this opinion. We agree with the juvenile court that there is no doubt of the Grandparents’ sincerity (or, for that matter, that of their son or Mother) to Charles and their insistently-expressed desire to have Charles placed with them.

Although Father does not limit his attention to the April 21 hearing, going back to the February 8 hearing when various relatives declared their willingness to have Charles placed with them, this is not material because the governing analysis remains the same. The juvenile court correctly focused on the child’s needs for permanency and stability rather than the Grandparents’ understandable indignation and frustration. By this point in the dependency proceeding, the child’s needs were paramount. (In re Stephanie M., supra, 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Bringing forth relatives for potential placement would not alter that focus.

There is authority that a parent has no standing to challenge the denial of placement with a relative. (See Cesar V. v. Superior Court, supra, 91 Cal.App.4th 1023, 1035.) Although this might prevent Father from pressing on, it would not prevent Grandparents from asserting the same claim. In any event, given the importance of the issues and the effective finality of the order in ending the Grandparents’ hope of gaining placement, we do not choose to halt our analysis with a conclusion that one appellant lacks standing. (See In re Rodger H. (1991) 228 Cal.App.3d 1174, 1185-1186.)

Father next attacks the juvenile court for its apparent inconsistency at the February 8 hearing. He argues that the court first stated (on page 227 of the combined reporter’s transcript) that the foster parents “had already the status... as prospective adoptive parents” under section 366.36, subdivision (n)(1), which statement, Father further asserts, “was belied by its statement just a few moments later that it was declining to so designate Charles’s caretakers at that time (RT 228) and it did not do so until two hearings later (RT 253).” We disagree.

After the court made its first statement, counsel for the Department requested an express finding to that effect “and have that be added as an additional finding to the order in paragraph 20 that the current caregivers be so designated.” The court responded: “It appears that all the factual evidence supports that additional finding for the.26 portion of the hearing today, and that will be added if in fact the proposed ruling and findings are adopted.” This was not inconsistency, but simple prudence: the court realized that the entire placement and termination hearing would require additional court time, and it sensibly decided not to make piecemeal findings, but hold off doing so until a final order was appropriate. As the court noted on page 237 of the reporter’s transcript, “the entire.26 hearing is not final,” that is, it was not yet concluded.

Based on the court’s comment at the February 8 hearing that it perceived “no basis for changing the placement,” Father asserts that the juvenile court “failed to exercise its independent judgment,” and in effect merely rubber-stamped the Department’s recommendation for continued placement with the foster parents. This is simply not true. The court had just heard testimony from Grandfather, Father’s sister H.B., and Father’s “extended cousin” C.M., against the Department’s recommendation. Moreover, if Father’s impression was true, there was no point in the court going on to hear testimony from Mr. Tejada and continuing the hearing until the ICWA notice issue was settled. That information by itself demonstrates that the placement issue was still open. Again, Father is seizing upon isolated comments and statements, yet neglecting to appreciate the on-going efforts of the court.

Justifiably, Father sees “the tenacity of [his] family members as well as the vehemence with which they spoke out about... hav[ing Charles] placed with them spoke volumes as to the lengths to which they would go to keep him within their family.” It does indeed reflect most creditably on the family. But again we must emphasize that the court’s focus was now on what was best for the child. While Father understandably focuses upon the good qualities of his family, he gives no attention to the positive features of the foster parents that so impressed the Department and the state adoptions worker—nor does he mention that even Grandfather admitted that the foster parents had done “a wonderful job with my grandson.” The court did not have the blinkered luxury of looking at only the evidence father and Grandparents see as favoring them.

We do not propose to extend this already lengthy opinion by reciting the reasons supporting the court’s placement decision. The uncontroverted opinions of the Department and the state adoptions worker have already been quoted. In addition, placement with a relative—particularly the Grandparents—would almost certainly involve exposing Charles to his parents, something the court would be concerned about in light of its beyond-a-reasonable-doubt finding that custody in either parent would be “likely to result in serious emotional or physical damage to the child” and the Department’s belief that the Grandparents’ inaction was at least partially responsible for the necessity of the dependency.

We do not imagine that the juvenile court made its ruling without some agonizing, and without being acutely aware of the pain it would cause to a host of Charles’s relations. Regardless of whether section 361.3 or section 366.26, subdivision (k), constituted the controlling authority, that ruling cannot be condemned as an abuse of the court’s discretion.

DISPOSITION

The termination order is affirmed.

We concur: Kline, P.J., Haerle, J.

“The mother... has a history of substance abuse that, at times, renders her unable to provide proper care and supervision for this five-month-old infant. The mother’s drugs of choice include but are not necessarily limited to marijuana, crack, cocaine, and crank. To wit:

“[¶]... [¶] At the time of the minor’s detainment on or about 09/19/2006 the mother’s behavior was consistent with being under the influence of a controlled substance. The mother’s behavior was violent and erratic to the extent that she ripped one or more doors off their hinges and broke a number of items in the house. She also exhibited sudden and frequent mood swings and she had difficulty conversing with the social workers and law enforcement.

“On or about 09/18/2006 the mother’s behavior was consistent with being under the influence of a controlled substance. The mother’s physical signs of drug use included excessive fidgeting, Meth sores on her extremities and head (ears, face, and into her hairline), rapid speech that lacked continuity, and track marks on the anterior of her right elbow.

“The mother used methamphetamine approximately two days prior to the infant’s detainment on or about 09/19/2006.

“The mother used marijuana approximately two days prior to the infant’s detainment on or about 09/19/2006.

“The mother tested positive for marijuana at the time of the infant’s birth....”

“This five-month-old infant is at substantial risk of physical harm due to the mother’s failure or inability to provide adequate supervision and protection. To wit:

“[¶]... [¶] The mother... has a documented and ongoing pattern of poor impulse control, anger management issues, and violent behavior that dates back to her teenage years as a juvenile dependent.

“On or about 09/19/2006, despite the presence of social workers and law enforcement the mother flew into an uncontrollable act of rage. Her actions included but were not limited to screaming, throwing a glass kerosene lantern across the room, ripping an interior door from its hinges, punching and slamming herself into walls, and swiping her arm across the dining room table scattering debris through to the living room and kitchen.

“On or about 9/18/2006, the mother’s physical appearance included a large lacerated contusion on the right side of her forehead and several large, dark contusions approximately four to five inches in diameter above her left elbow on the outer triceps that are self-inflicted injuries that during one or more of her destructive outbursts.”

“[¶]... [¶] The father has willfully and/or negligently failed to provide adequate supervision and protection for his... son in that the father consistently leaves the infant alone with the mother despite knowing that the mother is prone to intermittent bouts of erratic and violent behavior.”


Summaries of

In re Charles N.

California Court of Appeals, First District, Second Division
Apr 13, 2009
No. A121373 (Cal. Ct. App. Apr. 13, 2009)
Case details for

In re Charles N.

Case Details

Full title:In re Charles N., a Person Coming Under the Juvenile Court Law. LAKE…

Court:California Court of Appeals, First District, Second Division

Date published: Apr 13, 2009

Citations

No. A121373 (Cal. Ct. App. Apr. 13, 2009)