Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County Nos. 08CEJ300129-1, 08CEJ300129-2, 08CEJ300129-3, 08CEJ300129-4 Mary D. Dolas, Commissioner.
John L. Dodd & Associates, Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Detjen, J.
Robert E. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his four children. He contends he did not receive proper notice of a recommendation to terminate rights and, as a consequence, both his statutory and due process rights were violated. Father also contends the juvenile court acted in excess of its jurisdiction because an Indian tribal court had assumed exclusive jurisdiction over the children. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In the spring of 2008, the children, who ranged in age from one to five years, were detained following their parents’ arrest on criminal charges, including child endangerment. Due to the parents’ failure to adequately care for and protect the children, the Fresno County Superior Court (juvenile court) exercised its dependency jurisdiction over them.
The juvenile court subsequently adjudged the children juvenile dependents, removed them from parental custody, and ordered the parents to participate in reunification services. At the dispositional phase, the juvenile court also proceeded according to the Indian Child Welfare Act (ICWA), having found it applied. The children’s mother was a member of the Cocopah Indian Tribe (tribe) and the children were eligible for tribal membership.
The children were eventually enrolled as members of the tribe.
While the mother made no progress, father successfully completed reunification services. As a result, the children were placed with him on an extended visit in June 2009. Within a month’s time, father had relapsed in terms of substance abuse. Over the following months, he had repeated positive drug tests, only sporadically drug tested, and had poor NA/AA attendance. In addition, the mother was reportedly living with father and the children in violation of the court’s orders. She also reportedly engaged in domestic violence with father, which the children witnessed. Consequently, the children returned to foster care in October 2009.
In November 2009, the juvenile court terminated reunification services and set the case for a hearing pursuant to section 366.26 to select and implement a permanent plan for the children. The court personally ordered father, who was present, to attend the hearing scheduled for February 22, 2010. It also informed him that the hearing could result in the termination of his parental rights and adoption of the children.
Notice of the Section 366.26 Hearing and the Recommendation to Terminate
The following month respondent Fresno County Department of Social Services (department) served written notice of the section 366.26 hearing on father. The notice included the social worker’s recommendation for termination of parental rights and implementation of a plan of adoption.
Reduction in Father’s Visitation and Educational Rights
Despite a court order for at least once-a-week supervised visits between the children and father, he failed to attend three of his four scheduled visits in December 2009 and the first two scheduled visits for January 2010. The one visit father did attend started out well, but deteriorated into chaos by its end. As a result, in January 2010, the department requested (§ 388) and the court ordered that visitation occur monthly and father arrive at least 45 minutes in advance. Father did not attend the January hearing on the department’s section 388 request.
Later still in January 2010, father failed to attend scheduled school meetings to discuss possible plans and services for one of the children. By this point, the mother’s whereabouts were unknown. This led the court in early February 2010 to grant another request by the department to suspend the parents’ educational rights. Father did not attend the hearing on this request either.
The Department’s Permanency Planning Report
Before the February 2010 permanency planning hearing, the department submitted a “366.26 WIC REPORT” to the court. Under the heading “SUMMARY RECOMMENDATION, ” the department recommended “Adoption, without termination of parental rights” and further requested a 180-day continuance “in order to continue assessing for the most appropriate adoptive placement.”
In the body of the report, the department assessed all of the children as generally adoptable. However, a tribal representative reportedly stated that should parental rights be terminated, the children’s enrollment in the tribe would terminate. They would lose tribal benefits, such as gift cards at the holidays and the use of Indian medical facilities. Although the tribe indicated it was not in agreement with termination of parental rights, it had not provided an alternative plan nor located an Indian home for the children. In addition, the department reported that a change in the law, described as “Tribal Customary Adoption, ” would apply to the children as of July 1, 2010. The department stated it would assess the “possibility” of adoption without the termination of parental rights.
The Legislature amended the dependency statutory scheme, effective July 1, 2010, to authorize tribal customary adoptions. (See §§ 366.24 & 366.26.) Tribal customary adoption means adoption by and through the tribal custom, traditions, or law of an Indian child’s tribe and without the requirement of termination of parental rights. (§ 366.24, subd. (a).) The legislative amendments appear to give an Indian child’s tribe an election to identify tribal customary adoption as the permanent placement plan for the Indian child, provided certain conditions are met. (§ 366.24, subd. (c); 366.26, subd. (e)(2).)
The children’s foster parents indicated a willingness to adopt the children if rights were terminated, but were concerned about providing any permanent plan if rights were not terminated. Although various relatives had come forward to request placement, none had been approved. Thus, the department requested additional time to locate and assess the most appropriate permanent placement for the children.
The department also reported that father failed to attend seven out of eight scheduled visits with the children. The one visit he did attend in late December 2009, father arrived late and the visit was nearly cancelled. At the end of the visit, he left quickly and the children did not appear to notice he had gone.
February 2010 Permanency Planning Hearing
Father failed to appear at the originally-scheduled February 2010 permanency planning hearing. This was despite the court’s November 2009 order directing father to attend as well as the department’s December 2009 service of written notice of the hearing, which included its recommendation to terminate parental rights. At the hearing, the department requested and the court granted a continuance for the department to publish notice to an alleged father of one of the children. The court continued the permanency planning hearing in progress to a May date. In the process, the court found father had been properly noticed, but he failed to appear for the permanency planning hearing.
May 2010 Permanency Planning Hearing
Before the continued hearing date, the clerk of the Cocopah Indian Tribe tribal court mailed to the juvenile court copies of an “ORDER ASSUMING JURISDICTION” filed in April 2010 for each child. For each child, the chief judge of the tribal court ordered “assuming jurisdiction over this matter[, ]” and “transferring legal and physical custody of the Child from State authorities to the Cocopah Social Services Department (CSSD) for placement in appropriate foster care services closer to the Cocopah Indian Reservation.”
Father attended the May hearing at which the court found there was proper notice of the permanency planning hearing to all parties. Once again, the department requested a continuance. This was apparently due to “some questions that ha[d] come up with respect to the Indian tribe.”
The court assumed the department’s attorney received “this letter or motion from the Cocopah Indian Tribe, ” but the attorney had not. He had spoken, however, with LaNita Plummer, an attorney who worked as the tribe’s ICWA representative, who “said it had gone to court.” The other attorneys did have copies. The department’s attorney understood, based on his conversation with Plummer, that the tribe also sought a continuance. There were apparently some issues about the case’s history that needed clarification. There was no objection to the continuance request.
At this point, the department attorney’s added:
“there was a question about as far as, um, father was concerned who he had been talking to with the Tribe with respect to his understanding of the plan of the Tribe and his ability to reunify through the tribal process. Is there any information the father has on that issue who was contacted?”
Father could not give a full name or phone number for the person. He responded “[n]o problem” to a request that he provide the contact information to his attorney.
In addition, father had a new address. He claimed he was living in Arizona on the reservation. His attorney did not have the new address and father did not know his new address, other than Yuma, Arizona.
We note, according to the tribe’s letterhead and website, that the reservation is actually located south of Yuma.
The court ordered father to contact his attorney the next day and provide his current mailing address as well as the name or phone number of the social worker father claimed to have been in contact with “should the case be transferred.” The court also directed father’s counsel to provide that information and to make sure the department had father’s new mailing address “so he can receive notices.” The court continued the hearing in progress to a June date.
Father’s attorney then requested a visit for father with the children. Father stated he had not had a visit in two months because he was out of state. He also claimed he called asking for visits, but did not receive a call back. The court recommended that father go to the department’s office and speak to either the social worker or supervisor to see if a visit could be coordinated.
Addendum Report
Before the next hearing date, the department submitted an addendum report to the court. Under the heading “SUMMARY RECOMMENDATION, ” the department recommended adoption with termination of parental rights. The department offered the following additional information. The social worker had been in contact with the tribe’s attorney, Plummer, who stated the children would be able to apply for reinstatement of their Indian and tribal status once they reached 18. In addition, the tribe was deciding whether to withdraw its request to transfer the case to the tribal court’s jurisdiction.
The department also reported father failed to attend 8 out of 11 scheduled visits. The social worker personally supervised the three visits that did occur. There was the late December 2009 visit to which father arrived late and left quickly, a March 2, 2010 visit, and a May 19, 2010 visit.
At the March visit, father focused all of his attention on the oldest child, to the exclusion of the other children. One child seemed content to play on his own. When another of the children could not get father’s attention, the child tried to get the social worker to play with him. The third child became so frustrated at the lack of positive attention that he left the visit with father and joined another family for their visit.
Father cancelled his visit scheduled for May, but the social worker was able to reschedule it. Shortly before the visit began, a number of father’s relatives began to appear, including the paternal grandmother who arrived with refreshments. The social worker allowed the visit to continue as the two eldest children appeared to know a few of the guests and all the children seemed happy to see their grandmother.
The social worker acknowledged the children knew father and looked forward to seeing him, but they did not share a parent-child relationship with him. During visits, the children looked to the social worker for attention and support. In addition, father as well as the mother failed to maintain consistent contact with the children. Terminating parental rights would not be detrimental to the children. The department also identified the children’s foster parents over the preceding eight months as their prospective adoptive parents.
June 2010 Permanency Planning Hearing
Father was not present on the continued hearing date. Attorney Plummer appeared by telephone at the tribe’s request. She stated her belief that there was “a motion accepting jurisdiction” as well as “a motion to intervene and a motion to transfer.” She added “the Tribe has decided that it would like to withdraw the motion to transfer.”
There was no such motion in the appellate record, resulting in a motion to augment by appellant. Although this court granted the augmentation motion, we later received a declaration under penalty of perjury from a superior court appeal department clerk stating that, after reviewing the court’s records, she was unable to locate such a motion.
Neither counsel for the department nor counsel for the children had any objection to the tribe withdrawing its motion to transfer jurisdiction. Father’s attorney did not know what father’s position was, since he was not present. The attorney added he had expected father to be present and believed father was looking forward to the tribe intervening and providing him with further services.
At this point, Plummer asked to respond. She advised that father was not a member of the tribe and providing him further services was not the tribe’s position. Also, as representative of the tribe, Plummer stated she was satisfied that reunification efforts had failed and the State of California had carried out its duty with respect to reunification.
Having heard from Plummer regarding the tribe’s current position, the court permitted the tribe to withdraw its prior request to transfer jurisdiction.
At this point, the department’s attorney acknowledged its recommendation for termination must be supported by ICWA expert opinion, which the department would need time to obtain. The court asked father’s counsel how he intended to proceed. Father’s counsel set the case for trial, stating his “most recent understanding of [father’s] position was that he was opposed to adoption.”
The court continued the hearing in progress once more. It calendared both a settlement conference hearing for a date in July and a contested hearing in August. No appeal was taken from the court’s order permitting the tribe to withdraw its request to transfer jurisdiction.
Further Proceedings
Father attended neither of the continued hearings that the court set for permanency planning. At the July settlement conference, father’s counsel announced “we do not know [father’s] whereabouts.” Father had not advised his counsel of his whereabouts. The only addresses counsel had for father were in Fresno. A letter sent to the more recent of the two addresses was returned in June from the post office with a notation “Moved. Left no address, unable to forward.” Counsel therefore had no witnesses or evidence to provide the court.
On the August hearing date, the court heard testimony from the ICWA expert. It was the expert’s opinion that if the children were returned to the care of either parent, they would be at risk of serious emotional or physical harm. In the expert’s written declaration, which was also before the court, he stated the tribe had agreed that so long as the children remained together in their current placement home, it would not request transfer of the children’s case to the tribe’s jurisdiction. In addition, the tribe would agree to termination of parental rights, provided the children remained in their current placement home and would all be adopted together in that home.
As the various attorneys submitted the matter, counsel for father advised “at this time [we] have no means of communicating with him nor has he communicated with us. So I am submitting.”
The court then made the requisite findings and terminated parental rights.
DISCUSSION
I. Notice
As detailed above, father failed to appear at the originally-scheduled February 2010 permanency planning hearing, despite the juvenile court’s previous order to appear and the department’s written notice. For reasons unrelated to father, the court continued the hearing in progress. It also found father had been properly noticed for the permanency planning hearing.
Father did appear on the continued hearing date in May 2010, although there is no record that the department or the court gave him notice of the continued hearing date by first-class mail at his last known address (§ 294, subd. (d)). At the May hearing, the court continued the permanency planning hearing in progress to June 2010, thereby giving father actual and reasonable notice of the continued hearing date.
However, father failed to attend the June 2010 hearing. At that hearing, the court continued the permanency planning hearing in progress to dates in July and August 2010, neither of which hearings father attended. Once again, there is no record that the department or the court gave father notice of the continued hearing dates by first-class mail or other reasonable means (§ 294, subd. (d)).
Father does not complain about the lack of written notice of the continued hearing dates in July and August. Perhaps this is because he had moved and never gave his new address to counsel, as specifically ordered by the court at the May hearing, so that notice could be served. Also, mail to father’s last known address came back undeliverable in June 2010.
Father does claim, however, lack of proper notice as to the department’s recommendation that the court terminate parental rights. Specifically, he contends that when the department changed its summary recommendation in June 2010 from adoption-without termination of parental rights to adoption with termination of parental rights, he should have been provided new notice pursuant to section 294 of that change. In his view, he was not notified his rights could or would be terminated.
Father adds he could reasonably believe based on what transpired at the May 2010 hearing that his rights would remain intact or the tribe would allow him to reunify with the children so that he did not need to attend the continued hearing(s). He also argues that the lack of formal notice regarding the change in recommendation violated his due process rights. Indeed, he claims this was structural error, entitling him to reversal per se.
Father’s claims suffer from multiple flaws that leave us to question whether there was error. Nevertheless, the record persuades us that any error was harmless, regardless of what standard of prejudice we apply.
Claim of Statutory or Common Law Error
Father relies on section 294, which sets forth exacting and time-consuming requirements for service of notice of a section 366.26 permanency planning hearing to a parent. (See § 294, subds. (c) & (f).) In addition, it spells out what information the notice must contain, including “[t]he recommendation of the supervising agency.” (§ 294, subd. (e)(5).) In particular, section 294, subdivision (d), addresses what should occur if the court continues a section 366.26 permanency planning hearing. Section 294, subdivision (d), states:
“Regardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, or to any person entitled to receive notice pursuant to this section, subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent, and to any person entitled to receive notice pursuant to this section, regarding that subsequent hearing.” (Emphasis added.)
Father relies on the above-highlighted language of section 294, subdivision (d), to claim he was entitled to new notice. New notice, in father’s case, likely would have required personal service at least 45 days before the court could proceed (§ 294, subds. (c)(1) & (f)(3)) or, since father’s whereabouts were unknown, a due diligence showing at least 75 days before the hearing date followed by service of notice upon his attorney and the grandparents (§ 294, subds. (c)(2) & (f)(7)).
Father’s argument ignores the fact that he received notice of the section 366.26 hearing and the department’s recommendation to terminate parental rights in late December 2009 and that the court in February 2010 found he received proper notice. In his reply brief, father essentially claims this notice was irrelevant due to the summary recommendation in the department’s February 2010 report for adoption without termination of parental rights as the permanent plan. We are not so certain.
To begin, it is questionable whether the department ever changed its permanency planning recommendation for the children. Yes, the summary recommendation in the report the department submitted before the February 2010 hearing was for “adoption without termination of parental rights.” However, the body of the report was much more equivocal. The department explained the children were generally adoptable and their foster parents wanted to adopt them, but the tribe did not favor termination and represented the children would lose tribal benefits. The department also shared its understanding of an impending change in the law and stated it would assess the “possibility” of adoption with the termination of parental rights. It also sought more time to accomplish this.
Nonetheless, based on the express language of section 294, subdivision (d), there was no statutory violation. The condition precedent for new notice is “if the recommendation changes from the recommendation contained in the notice previously found to be proper.” (§ 294, subd. (d); emphasis added.) Here, it was at the February 2010 hearing that the juvenile court found notice to father, which included the recommendation to terminate parental rights, was proper. The department’s recommendation did not change after the court’s February 2010 finding or, more specifically, in June 2010 as father maintains. The summary recommendation for adoption without termination of parental rights appeared before the court made its February 2010 finding. In June 2010, the department reasserted its recommendation to terminate.
It appears father’s argument seeks an expansion of section 294, subdivision (d), so that whenever a department changes its permanent plan recommendation from the notice it gave, it must send new notice pursuant to section 294. However, our appellate authority does not extend to rewriting the code.
Father also cites appellate decisions, In re J.I. (2003) 108 Cal.App.4th 903 and In re Phillip F. (2000) 78 Cal.App.4th 250, interpreting former section 366.23, the predecessor to section 294. Notably, former section 366.23 neither addressed what notice should be served when a court continues a section 366.26 hearing nor included the language found in subdivision (d) of section 294, upon which father relies. The cases father cites dealt with scenarios in which parents had actual notice of the continued permanency planning hearing date.
Starting with In re Phillip F., supra, 78 Cal.App.4th at page 259, a case out of this court, and later still in In re J.I., supra, 108 Cal.App.4th at page 910, actual notice of the continued hearing date was held to suffice. Although neither case involved a department’s changed recommendation, both decisions added the proviso actual notice sufficed where or so long as the department’s recommendation is not changed. (In re J.I., supra, 108 Cal.App.4th at p. 910; In re Phillip F., supra, 78 Cal.App.4th at pp. 258-259.) Section 294 was effective in 2004, after these decisions and, by its language in subdivision (d), took a slightly different approach, as discussed above.
Even assuming the dicta in these opinions represented the current state of the law, we would find any error harmless under a Watson standard in this case. First, there is no affirmative showing in the record that father was aware of the February 2010 recommendation for adoption without termination of parental rights. Also, father does not claim he relied on the department’s summary recommendation for adoption without termination of parental rights.
People v. Watson (1956) 46 Cal.2d 818, 836.
Second, although father argues as though the transfer of jurisdiction to the tribal court and more reunification services for him were a fait accompli at the May 2010 hearing, they were not. The court made the point, in father’s presence, that whether to transfer the case remained at issue. Also, the tribe wanted a continuance because there were issues that needed further investigation. In addition, as became clear at the June hearing, of which father had notice but chose not to attend, he would not receive services since he was not a member of the tribe. While father contends he could reasonably rely on his purported understanding of what would happen, we disagree in light of what transpired at the hearing, coupled with the fact father had trial counsel with whom he could have consulted rather than rely on his own misunderstanding.
Third, there were the statements by father’s trial counsel at the June 2010 hearing about his expectation that father would be in attendance and father’s opposition to adoption. Counsel’s most recent understanding of father’s position was that he was opposed to adoption. These remarks support a reasonable inference that father was aware termination remained a possible outcome in this case.
Last, father had no viable defense or detriment argument to make against termination, had he been present at the August 2010 permanency planning hearing. As we detailed above, once the juvenile court terminated reunification services in November 2009, father stopped maintaining regular visitation and contact with the children. He missed so many scheduled visits that his visits were reduced. Between December 2009 and August 2010, it appears father attended only three visits with his children. Thus, he could not have succeeded with a parent-child relationship claim (§ 366.26, subd. (c)(1)(B)(i)). Since the children were to be adopted together by their prospective adoptive family, he also could not argue termination would substantially interfere with the children’s sibling relationship or that the tribe would not approve. (§ 366.26, subds. (c)(1)(B)(v) & (vi).)
Claim of Due Process Violation
Under the circumstances as outlined above, we fail to discern how father’s due process rights were violated because, in the view of his appellate counsel, the department essentially waffled in its recommendation to terminate parental rights. Father had notice and the opportunity to be heard on the issue of permanency planning for the children. (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.) He also knew the court’s options included termination of parental rights. He failed to take advantage of the opportunity by his own accord. In this regard, we observe father did not advise his attorney, as ordered, of his new address so that he could receive notice. He also did not maintain contact with his counsel, who could have apprised him that the tribe rescinded its request to transfer and the hearing to terminate his rights would proceed.
Even were we to find a due process violation, we still would not reverse. Although father claims a due process violation is structural in nature so as to necessarily compel reversal, we disagree. As this court explained in In re Angela C. (2002) 99 Cal.App.4th 389, 393-395, we apply a harmless error standard under Chapman to lack-of-notice claims in dependency matters. More recently, the California Supreme Court in In re James F. (2008) 42 Cal.4th 901, 915 observed:
Chapman v. California (1967) 386 U.S. 18, 24.
“juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment. The rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding.”
The court added it could not agree that “prejudice is irrelevant in a dependency proceeding when the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the child.” (In re James F., supra, 42 Cal.4th at p. 917.)
For the reasons we previously detailed, we would find any error harmless even under a heightened standard.
II. The Juvenile Court’s Jurisdiction to Terminate Parental Rights
Father also contends once the tribal court issued its order assuming jurisdiction, their jurisdiction was exclusive under ICWA so that the juvenile court did not have jurisdiction to terminate parental rights. Once again, father’s argument is fatally flawed. First, father’s argument appears to be a roundabout way of attacking the juvenile court’s June order permitting the tribe to withdraw its request to transfer jurisdiction. That order was never appealed, not by the tribe nor by father. The time to appeal the juvenile court’s order had elapsed by the time father filed his notice of appeal from the order terminating parental rights. Therefore, he is foreclosed from disputing the propriety of the June 2010 order. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811; In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [a challenge to the most recent order entered in a dependency matter may not dispute prior orders for which the statutory time for filing an appeal has passed].)
Second, ICWA gives an Indian tribe exclusive subject matter jurisdiction over any child custody proceeding involving an Indian who is either domiciled on the tribe’s reservation or is already a ward of the tribal court. (25 U.S.C., § 1911, subd. (a); § 305.5, subd. (a).) The children in this case were neither. Although father assumes the tribal court had already made the children tribal court wards, there is no evidence in the record to support his assumption. Certainly, there was no finding by the tribal court that the children were its wards. Also, father ignores a finding by the tribal court that each child “may be a Child In Need of Care, pursuant to the Cocopah Child Welfare Code.” This language supports an inference that the tribal court had not yet made the children wards.
Also, ICWA requires that a tribe seeking transfer of state child custody proceedings to its tribal court shall petition for transfer. (25 U.S.C. § 1911, subd. (b); § 305.5, subd. (b).) As explained previously, the record contains no such petition or motion. There were only the certified copies of the tribal court orders and the tribal court clerk’s letter of transmittal. Although attorney Plummer may have assumed the orders constituted a petition or motion to transfer, it does not appear ICWA compelled the juvenile court to transfer its dependency jurisdiction simply based upon receipt of the tribal court orders. Indeed, ICWA acknowledges a state court may decide not to transfer jurisdiction based on a good cause showing to the contrary. (25 U.S.C. § 1911, subd. (b); § 305.5, subd. (b).)
We conclude the juvenile court had the requisite jurisdiction to terminate parental rights.
DISPOSITION
The order terminating parental rights is affirmed.