Opinion
H025231.
7-22-2003
In re JACOB M., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. HENRY M. et al., Defendants and Appellants.
Wendy G. and Henry M. appeal from an order terminating their parental rights to their son Jacob M. (born 1999) pursuant to Welfare and Institutions Code section 366.26. Wendy contends that the juvenile court erred by rejecting her evidence and argument that the case came within the exception to termination described by section 366.26, subdivision (c)(1)(A) (no termination if termination would be detrimental to the minor because the parents maintained regular visitation and the minor could benefit from continuing the relationship). Henry contends that the (1) juvenile court failed to make sufficient findings, and (2) the adoption assessment report was insufficient. Both parents contend that the juvenile court erred by failing to comply with the Indian Child Welfare Act (ICWA). We affirm the judgment.
Further unspecified statutory references are to the Welfare and Institutions Code.
LEGAL BACKGROUND AND SCOPE OF REVIEW
Section 366.26 sets forth the procedure for permanently terminating parental rights concerning a minor who has been removed from parental custody and declared a dependent child of the juvenile court. The statute states, in part: "If the court determines . . ., by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . ." ( § 366.26, subd. (c)(1).)
If the court determines it is likely the minor will be adopted, certain prior findings by the juvenile court (e.g., that returning the minor to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the minor) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court finds one of four specified circumstances in which termination would be detrimental. ( § 366.26, subd. (c)(1)(A).) The first of these circumstances states: "The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid .)
"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
The " `clear and convincing " standard specified in section 366.26, subdivision (c)(1), is for the edification and guidance of the trial court and not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750, 106 Cal. Rptr. 187, 505 P.2d 1027; In re Heidi T. (1978) 87 Cal. App. 3d 864, 871, 151 Cal. Rptr. 263.) " `The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.]" (Crail v. Blakely,supra, 8 Cal.3d at p. 750.) Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)
BACKGROUND
Six-month-old Jacob became the subject of a juvenile dependency petition in August 1999 after being hospitalized with life-threatening, nonaccidental injuries for which Wendy and Phillip G. (Wendys husband and Jacobs step-father) had no explanation. The Department of Family and Childrens Services (Department) filed a detention report noting that the ICWA "does not apply" and the following: "The mother . . . stated that she may have some Indian heritage in her family, but was uncertain regarding what tribe or from where her descent is from."
Jacobs medical diagnosis was Shaken Baby Syndrome. Phillip then admitted shaking Jacob up to 10 times during the past month, including at least once on the day Jacob was hospitalized. In October 1999, Wendy and Henry agreed to the jurisdictional findings and dispositional orders. The orders placed Jacob in a foster home and offered Wendy and Henry reunification services and supervised visitation twice a week for one hour. The Departments jurisdictional/dispositional hearing report repeated the ICWA notation that was made in the detention report.
The Department filed an interim report on January 13, 2000, stating after the underscored and bolded heading "INDIAN CHILD WELFARE ACT STATUS" that "The Indian Child Welfare Act does or may apply" followed by the notation "N/A."
On February 1, 2000, Henry filed a section 388 petition seeking placement of Jacob with him. The petition made no mention of the ICWA. The contested hearing on the petition began on March 3, and continued on March 23, 24 and April 21. Due to the "substantial amount of conflict and accusation being made back and forth between the parents," the social worker requested a psychological evaluation of each parent. The juvenile court ordered the requested evaluations. A status review hearing report for the April 21 hearing carried over the same ICWA notation from the January 13 report.
The section 388 hearing on April 21, 2000, and the hearings thereafter were also six-month review hearings.
The minutes of the April 21, 2000, hearing indicate that the court ordered psychological evaluations of both children, but the record otherwise indicates that evaluations were ordered for both parents.
Henry testified in support of his section 388 petition on July 12, 13, and 18, 2000, his wife testified on July 18 and 19, and the juvenile court admitted the social workers addendum reports into evidence. A report filed on July 19 states after the underscored and bolded ICWA heading that "The Indian Child Welfare Act does not apply." The social worker originally recommended that Jacob be placed with Henry but with family maintenance services. After receiving
Henrys psychological report, the social worker recommended that Jacob continue in his present foster home and that Henry continue to receive reunification services. On July 19, the juvenile court granted Henrys petition "with modifications." The social worker was directed to "develop a transition plan for Jacob to return to the home of his father. Also to work with the doctors for exchange of information. The social worker shall also assist the father & stepmother in obtaining services for Jacob. [P] The father & stepmother shall participate in co-parenting classes & therapy; the father shall not drive with the minors in the car w/out a valid drivers license; the father shall participate in a medication evaluation."
Henry met with the social worker on August 7, 2000, and agreed to a six-week transition plan. On August 25, the juvenile court continued the six-month review hearing to September 29 because Henry and his family were temporarily residing in Henrys parents home and indicated that they would not have a permanent home until September 1. On September 21, Henry agreed with Jacobs foster mother and the social worker that Jacobs transition plan should be slowed down to day visits for a couple of weeks and then expanded to overnight and weekend visits, as it appeared that the agreed-upon plan was going too fast for Jacob. Henry continued to reside with his family in his parents home but expected to have a permanent home by October 23. Accordingly, on September 29, the juvenile court continued the six-month review hearing to October 18. On October 18, it continued the matter to October 26 because "counsel need [sic] to formulate their current position" on the six-month review. At the continued hearing, the juvenile court stayed its previous order for a transition of Jacob to Henrys home and continued the hearing until December 1.
On November 1, 2000, Wendy filed a section 388 petition seeking placement of both Jacob and her other son, Antonio, with her (Antonio had been taken into protective custody on October 27). Wendys petition made no mention of the ICWA. Also on November 1, the Department filed a section 388 petition asking the juvenile court to set aside its order granting Henrys section 388 petition and setting in place a transition plan. The petition alleged that (1) Henry had been unable to secure permanent housing; (2) Henry had
misrepresented his living situation to the Department on repeated occasions; (3) the stepmother, who would be Jacobs primary caretaker, had displayed erratic, confrontational behavior and use of profanity in front of the children; (4) Henry continued to drive a vehicle with children in it and without a drivers license; (5) Henry had not complied with the court-ordered case plan to complete the DMV requirements to regain his license; (6) Henry had not provided proof of recent attendance at AA meetings as required by his case plan; and (7) Henry, Wendy, and the stepmother failed to make progress in the court-ordered co-parenting class. The juvenile court set the matters for a hearing on November 28 but the matter was continued several times.
In January 2001, Henry filed a section 388 petition as to both children alleging a change of circumstance since the November 7, 2000 hearing (Antonios detention hearing). On March 13, the Department filed a section 387 petition seeking continued placement of Jacob with his foster parents. The petition alleged that (1) Henry had misrepresented his living situation to the Department on repeated occasions; (2) the stepmother, who would be the primary
caretaker of Jacob, had displayed erratic, confrontational behavior and use of profanity in front of the children; (3) Henry continued to drive with children in the car without a valid drivers license; (4) the stepmother had driven with the children in the car without a valid drivers license; (5) Henry had not complied with the court-ordered case plan to complete the DMV requirements to regain his drivers license; (6) Henry had not consistently taken part in AA meetings and did not have a sponsor; (7) Henry, Wendy, and the stepmother had failed to make progress in the court-ordered co-parenting class; and (8) Henry and Jacob remain "avoidant" of one another during intensive supervised visitations.
On March 30, 2001, the juvenile court granted Jacobs foster parents application for de facto parent status and request to take the child out of the country on a vacation. It reset the pendent issues for May 14, but the date was continued several times.
On August 16, 2001, the Department filed notice that it was recommending that Antonio be returned to his mother, and that services be terminated and a section 366.26 hearing be set for Jacob. A status review report prepared for a
Antonio had been in his mothers care since November 2000.
hearing on September 4, 2001, states after the underscored and bolded ICWA heading, "The Indian Child Welfare Act does not apply." On September 7, Wendy petitioned for increased and extended visitation with Jacob. Henry filed opposition to Wendys motion on September 17, arguing that the juvenile court should consider increased visitation for him, as it had not yet addressed his January 2001 section 388 petition. Counsel for the children filed a trial brief on November 26 indicating that all parties were in accord with Antonios placement with Wendy, but requesting that the juvenile court terminate services for Wendy and Henry and set a section 366.26 hearing as to Jacob. On December 14, Henry filed a trial brief arguing that family maintenance/reunification services should be continued with the goal of placing both children together. He further argued that the Department refused to provide adequate visitation and services to allow him to reunify with either child. He made no mention of the ICWA.
The hearing on Henrys and Wendys section 388 petitions began on January 15, 2002, and continued over several days. The various social workers reports were submitted by the Department and admitted into evidence. The juvenile court initially ruled, after hearing argument by all parties, that it was also conducting an 18-month review hearing as to Jacob. And it granted the Departments request to withdraw its section 388 and 387 petitions as to Jacob.
At the conclusion of the hearing on February 6, the juvenile court returned Antonio to Wendy and terminated the dependency case as to him. However, it denied both parents section 388 petitions as to Jacob. It found that return of Jacob to either of his parents would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being. It found by clear and convincing evidence that reasonable services had been offered or provided to the parents. And it ordered that Jacob should remain in the custody of the de facto parents, terminated reunification services, and set a section 366.26 hearing for May 1, 2002.
Henry filed a writ petition challenging the findings and orders of the juvenile court in setting
the section 366.26 hearing. He argued that the juvenile court violated his due process rights by ordering Jacob detained during the family maintenance plan and erred in determining that there would be a substantial risk to Jacob if placed with him and finding that reasonable services had been provided. We denied the petition and specifically found that the record did not support Henrys claim that he was ever granted custody of Jacob with family maintenance services.
Wendy appealed the denial of her section 388 petition, and we affirmed the order.
The section 366.26 hearing began on May 1, 2002, and finally concluded on October 7. The Department submitted its case on its adoption assessment report that was authored by social worker Betty Ross. Wendy and Henry cross-examined Ross and other social workers. Their position was that the parental or sibling exception to termination applied, and they generally elicited testimony from the social workers (and from Henry himself) about the past visitation experiences.
In explaining its decision, the juvenile court stated, in part: "The court finds insufficient evidence exists to bring JACOB within [the parental] exception. JACOB, now almost
four years old, has not lived with either parent since he was seven months old. After an extended period of reunification services, the court found that return of him to either parent would create a substantial risk of detriment to him and terminated reunification services. Except for a very brief period of time when JACOB had unsupervised contact with his father, visitations with both parents have been supervised by the Department . . . . Descriptions of those visits are part of the dependency file and have also been submitted as evidence in this proceeding. These descriptions indicate visits that are pleasant and playful and generally without any negative incidents. It appears that JACOB enjoys the time that he spends with both his mother and his father and that each parent puts forth genuine effort to make visits pleasant for their son. The descriptions do not, however, evidence the parent-child relationship necessary to invoke this exception to the statutory preference for adoption as the permanent plan. Nothing in the case record or in the evidence currently before the court would support a finding that the benefit to JACOB in continuing the relationship with either parent would
outweigh the benefit of a permanent home through adoption."
EXCEPTION TO TERMINATION
Wendys contention on this issue is patently insufficient to raise an appellate issue. She pays lip service to the scope of review by generally urging that there was insufficient evidence to support the juvenile courts finding against her position. But she supports this by rearguing the case from her point of view. For example, Wendy advances that the "facts in this case meet the exception as defined under [relevant case law]." She then proceeds to detail the facts and explain how they meet the exception rather than focus on the facts supporting the juvenile courts decision and explain why those facts do not support the decision.
"Arguments should be tailored according to the applicable standard of appellate review." (Sebago,Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, 1388, 259 Cal. Rptr. 918.) And an attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. (Estate of Palmer (1956) 145 Cal. App. 2d 428, 431, 302 P.2d 629.) Absent compliance with these rules, we presume that the judgment of the trial court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193.) Stated another way, "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." (9 Witkin, Cal. Procedure, supra, Appeal, § 594, p. 627.)
We treat the exception-to-termination point as waived.
SUFFICIENT FINDINGS
Henry contends that his due process rights were transgressed because the predicate findings for termination (return to the parent would be detrimental) were not made. He claims that Jacob was returned to him on June 19, 2000, when the juvenile court granted his first section 388 petition. He reasons that, because there was no subsequent removal order, the juvenile court could not logically find that return to him would
be detrimental.
The short answer here is that this issue implicates the order terminating reunification services, which Henry challenged via his writ petition and we upheld with a finding that Henry never had custody of Jacob.
Henry persists that, even if he never had custody, there were never periodic 6-, 12-, and 18-month review hearings at which the predicate findings could be made because the 6-month hearing was repeatedly continued and there is no such thing as the combined 6-, 12-, 18-month review hearing at which his reunification services were terminated.
Again, the point implicates the order Henry challenged via his writ petition that we upheld.
ADOPTION ASSESSMENT REPORT
Henry complains that the adoption assessment report was insufficient. He argues that the statutes require preparation of a "joint assessment prepared by both the supervising agency and the licensed county adoption agency." He concludes that this mandate was not followed because the reports sole author, Ross, "was not employed as an adoptions worker for the licensed county adoptions agency."
By failing to raise the adequacy of the report below, Henry has waived this issue. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) "Any other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Ibid.)
ICWA
"In 1978 Congress enacted the ICWA to `protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. [Citation.] The ICWA recognizes that ` "the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents." [Citation.] `The ICWA presumes 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. [Citation.] Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection. [Citation.] [P] The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.] `Of course, the tribes right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending. [Citation.] `Notice ensures 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.] [P] To implement the notice requirement, ICWA provides that `where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. [Citation.] If the tribe is unknown, the notice must be given to the Bureau of Indian Affairs (the Bureau), as agent for the Secretary of the Interior. [Citations.] `No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe or the [Bureau]. [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
"The determination of a childs Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child." (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)
"The ICWA notice requirement is not onerous. `Compliance requires no more than the completion of a preprinted form promulgated by the State of California, Health and Welfare Agency, for the benefit of county welfare agencies. [Citation.] When proper notice is not given under the ICWA, the courts order is voidable." (Dwayne P. v. Superior Court,supra , 103 Cal.App.4th at p. 254.)
Wendy and Henry contend that the juvenile court erred by failing to comply with the notice requirements of ICWA. They assert that the juvenile court had notice that Jacob might be an Indian child via Wendys statements incorporated into the detention and subsequent reports. They also assert that no one made inquiry about Wendys statements. They conclude that the Department effectively disregarded the information that Wendy offered.
The Department and Jacob respond that Wendys
statements were vague and not timely raised.
We agree that Wendys statements were insufficient to trigger the notice requirement of the ICWA.
Here, Wendys one-time statement suggesting that there was Indian heritage in the family was exceedingly vague ("may have some Indian heritage in her family"). Not only did Wendy provide no further details, but also she stated that she could not provide further details ("was uncertain regarding what tribe or from where her descent is from").
These statements are similar to the statement found insufficient in the case of In re O.K. (2003) 106 Cal.App.4th 152. There, the paternal grandmother stated that the father " `may have Indian in him. " (Id. at p. 157.) The court pointed out that the statement was not based on any known Indian ancestors but on a nebulous assertion. It concluded that "this information was too vague and speculative to give the juvenile court any reason to believe the minors might be Indian children." (Ibid. )
In situations where courts have found a duty to comply with the notice requirements, more specific information regarding Indian ancestry was generally available. (See In re Marinna J. (2001) 90 Cal.App.4th 731, 739 [father informed social worker that child was of Cherokee Indian ancestry, but record failed to indicate that the department complied with the notice requirements of the ICWA]; In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1420, 285 Cal. Rptr. 507 [mother informed juvenile court that she was a member of a tribe.]; In re Jonathan D. (2001) 92 Cal.App.4th 105 [mother informed juvenile court that there was a definite Indian Child Welfare Act link because an ancestor, for whom she had a name and number, was full-blooded Cherokee].)
On this record, considering the lack of a tribe or an individual name from which any purported Indian ancestry of Jacob could be traced, it is difficult to discern what information the juvenile court could have forwarded to the Bureau. Under such circumstances, any notice to the Bureau would have been futile. In short, the duty to send notice is triggered only as soon as the juvenile court has reason to believe the child before it may be an Indian Child. Here, the information that the juvenile court received was, at best, speculative family folklore. This type of information is insufficient to trigger the notice requirements of the ICWA.
We add that Wendys statement to the effect that she did not know a tribe or her descent affirmatively demonstrates that the Department fulfilled its duty of inquiry. This follows because the statement is necessarily responsive to an inquiry asking for clarification of the Indian-heritage comment. At the very least, it is a volunteered statement. But the point is that the statement effectively conveys that the Indian-heritage comment was not factually based. Wendy and Henrys silence throughout this lengthy case as to the ICWA issue in the face of the Departments repeated notations that the ICWA "does not apply" or was inapplicable ("N/A") affirms this point.
DISPOSITION
The judgment (order after hearing) is affirmed.
WE CONCUR: Rushing, P.J., Bamattre-Manoukian, J.