Opinion
B201135
4-16-2008
In re STEPHANIE L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. STEVEN L., Defendant and Appellant; ROBERT L. et al., Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. McNamara & McNamara and James E. McNamara for Appellants. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
This appeal is from orders terminating parental rights and denying the paternal grandparents request for de facto parent status and custody of three dependent children. We reject the claims of error and affirm the orders.
FACTS
A.
Steven L. and Erica R. are the biological parents of three children — Jessica (born in October 1999), Robin (May 2003), and Stephanie (March 2005). On February 13, 2006, in response to a child abuse call, Los Angeles County Police Department officers went to the familys apartment and found Jessica with a swollen right cheek and redness under her left eye. Jessica told the officers that Erica had hit her in the face with a belt because she was watching television instead of getting ready for school. The officers took Jessica to the station, and later the same day a social worker from the Department of Children and Family Services interviewed all three children, at which time Jessica confirmed the statement she had given to the police and added that Erica had previously hit her with a belt.
When questioned at the police station, Erica denied Jessicas accusations, and Steven said he had been asleep. When the social worker told Steven she would have to assess the familys home, Steven became agitated and raised his voice to the point that the officers entered the interview room. He eventually calmed down and agreed to the home visit (adding that the house was "not clean"). The officers released Jessica to her parents, then accompanied the social worker to the familys home. When the officers and the social worker arrived at the apartment, Steven said they had taken "too long" to get there, that he was "offended" that the social worker had brought the officers with her, and refused to allow the officers or the social worker to enter the apartment. The officers and the social worker left.
B.
Over the course of the next two weeks, the social worker repeatedly called Erica and Steven to obtain permission for a home visit, but they refused. The parents finally relented, and during the social workers visit Erica reported that the apartment building was infested with mice and cockroaches. The apartment itself was filthy and had a "foul odor." The carpet was dirty and the couches, once beige, were brown from dirt. There was a four-inch high pile of "loose tobacco" in the living room.
Erica admitted to the social worker that there had been domestic violence incidents between her and Steven, and that she had looked into domestic violence shelters. About a week before the social workers visit, Erica had locked herself and the children in the bedroom following a domestic dispute, and Steven had broken the bedroom door.
C.
The children were taken into custody and placed together in a foster home on March 7, and a petition was filed on March 10. (Welf. & Inst. Code, § 300.) The detention report identified Stevens father and stepmother (the paternal grandparents) as Robert L. and Mary L., who reside in Texas, as a possible relative placement, and also noted that Steven had said his biological mother lived "near the Los Angeles area" or in Redlands. On the same day the petition was filed, the dependency court formally detained the children and gave the Department discretion to place them with any appropriate relative. When the court asked Steven and Erica whether either had any American Indian heritage in their family histories, Erica answered, "not that I know of," but Steven said, "I believe, yes, my grandmother was half Native American" but he did not know the name of the tribe. The court ordered the Department to investigate this issue.
All section references are to the Welfare and Institutions Code.
Later that month, the Department placed Robin with Ingrid S., and placed Jessica and Stephanie with Joyce W. Although the record is not clear, it appears that both Ingrid and Joyce are Ericas relatives.
D.
In April, the Department reported that Jessica had told the social worker that her father had told her not to talk to the social worker and had threatened that, if she did talk, he would take her to Texas and she would never again see her mother or sisters. After assurances from the social worker, Jessica repeated her previous statements about physical abuse and described the domestic violence she had witnessed at home. Steven and Erica again denied any abuse, and each blamed the other for the familys problems.
Steven had refused to provide the information needed to investigate the Indian heritage issue. The most he would say (when interviewed in March) was that his "maternal grandmother [whom he identified as Octavia Daniels] had Indian blood, but she is dead now and no one knows anything about what tribe." He said she was born on an unknown date in Texas, and had died in 2000. When asked whether his mother might have any information, Steven said, "She wouldnt know." When the investigator asked for his mothers name and telephone number, Steven refused to provide that information and said he did not want his mother to know about the dependency proceedings. On March 22, the Department sent notices to the Bureau of Indian Affairs and the Office of Tribal Services on the standard Judicial Council form (No. JV-135). The notices contained all of the information set out in this paragraph. Return receipts establish that the notices were received on March 24 and April 3. (See 25 U.S.C. § 1902 et seq., the Indian Child Welfare Act [ICWA].)
E.
At a hearing held on April 10, Steven asked the court to consider placing the children with his father in Texas, stating that the present caretakers (Ingrid and Joyce) were "in-laws," and "really not" relatives. He complained that he had trouble visiting because both caretakers lived in Lancaster. When the court noted that Texas is further away than Lancaster, Steven said his father was going to move to Los Angeles. The court set a contested hearing for May 12.
In May, the Department reported that the social worker had interviewed the grandparents and learned from them that, when Jessica was very young, there had been concerns about her development, and that the grandparents had paid for a private preschool for Jessica. At some point, Jessica had spent a summer with her grandparents, and at some other point the grandparents had offered to care for both Robin and Jessica in Texas, but Steven and Jessica had refused. The grandparents were "more than willing" to provide a permanent home for the children in Texas in the event Steven and Erica failed to reunify with the children, but were not willing to move to Los Angeles to care for the children.
At the May 12 hearing, both Steven and Erica agreed to submit on the reports, and the court then sustained the allegations that they had "physically abused" their children and had "used inappropriate discipline with a belt." The usual reunification services were ordered, including drug testing, parent education, anger management programs, and individual counseling for both parents with domestic violence and substance abuse counseling. The parents were granted monitored visits with the children, the Department was ordered to initiate an expedited Interstate Compact for Placement of Children (ICPC) for the grandparents.
In August, the Department reported that Steven was attending parenting classes but that both he and Erica had tested positive for marijuana in June, and Erica refused to discuss the domestic violence issues with the social worker. At an August 11 hearing, the court ordered the Department to move forward with the ICPC process for the grandparents (as a "backup" plan).
In October, the Department reported that the social worker had over the last two months made several attempts to contact Steven and Erica to arrange transportation funds for visits, all to no avail. Both caretakers told the social worker that Steven and Erica were "having problems in their relationship," and that Erica might have moved. Both parents had "discontinued" the court-ordered drug testing and counseling. By then, the social worker had been told by a Texas counterpart that the grandparents had received ICPC approval, and they attended an October 25 hearing. When the court was told that the grandparents were willing to take the children home with them to Texas, the court acknowledged the request but said the ICPC paperwork was still incomplete. Steven and Erica were "opposed to the children being moved" to Texas, and Steven explained that it wasnt that his father and stepmother "want[ed] to have the children," but rather that they would take them "if necessary." The court ordered the Department to finalize the ICPC process.
In December, the Department reported that (according to the social worker and Jessicas therapist) Jessica wanted to stay with her caretaker and that she did not want to live with her grandparents. By that time, Erica had completed her domestic violence group program but neither she nor Steven had resumed drug testing. For its part, the Department recommended that the court terminate family reunification services for both parents (and reported that the ICPC had formally approved the grandparents). A scheduled December hearing was continued to January 2007, which the court said would give the parents "more time to attempt to comply with the case plan."
In January 2007, the Department reported that the social worker had visited the parents apartment on January 17 and "found the entire home to be in poor condition." The trash cans were overflowing in the kitchen, and trash and empty alcohol bottles littered the floor. Moreover, both parents had tested positive for cannabinoids and missed several drug tests, and Steven had told the social worker that he and Erica had separated. For their part, the caregivers were providing good homes for the children, and both were willing to become legal guardians. At a January 23 hearing, Steven appeared with a new lawyer, and the parties agreed to a continuance to permit counsel to prepare for the contested hearing.
In March, the Department reported that Erica had tested positive for three out of four scheduled drug tests and missed the other test, and that Steven had not appeared at all for four scheduled tests. At a hearing held on March 6, the court found that neither Steven nor Erica had complied with their case plans and that both had "failed miserably." Reunification services were terminated, and the court, speaking directly to Steven and Erica, ordered them "both to return to this court at 8:30 on the 29th of June for a hearing on a permanent plan." The court confirmed the parents address, then discussed the possibility of placement in Texas and authorized the Department to arrange an extended trip for the children to visit the grandparents in Texas before the June hearing. After the hearing, the Department personally served notice of the June hearing on both Erica and Steven.
In April, the Department reported that it was unable to arrange the visit with the grandparents because the childrens spring break conflicted with the grandparents vacation plans, and the visit was tentatively rescheduled for the summer break.
In June 2007, the Department submitted its selection and implementation report along with a status review. Neither parent had attempted to contact the children since October 2006, and the caretakers remained committed to providing stable homes for the children (and both expressed interest in adoption). Jessica did not want to live with her grandparents in Texas, and told the social worker that her grandfather was "mean" (and that, during past visits, her grandparents had locked her in her room and yelled at her). Jessica appeared to be afraid of her grandfather. The grandparents visited Jessica in Los Angeles, but the social worker had to intervene when the grandmother sternly told Jessica she would be going to Texas (the child cried all the way home). According to the social worker, the grandfather was short tempered and raised his voice to both his wife and the social worker. The grandparents had not asked to adopt the children.
F.
On June 29, the date set for the permanent plan hearing, the grandparents filed a section 388 petition in which they asked for an extended visit in Texas and that the children be placed in their care. They also filed a request for de facto parent status, and submitted a declaration in which they expressed their desire to care for the children.
Neither Steven nor Erica attended the June 29 hearing. In their absence, the dependency court (1) summarily denied the grandparents section 388 petition, finding there were no changed circumstances and that the proposed move was not in the childrens best interests, and (2) denied the grandparents request for de facto parent status, finding there was no reason to make such an order at that time. When the court then raised the issue of terminating parental rights, Stevens lawyer objected on the ground that his client had not received proper notice — because the notice he did receive did not advise him that the Department was recommending the termination of parental rights. The court overruled the objection, finding the parents had received proper notice.
When the grandparents told the court the extended visit in Texas had never materialized, the court asked the caretakers whether they would be willing to enter a post-adoption agreement with the grandparents regarding visitation. Both caretakers answered affirmatively. The court then rejected Stevens contention (raised by counsel during argument) that his rights should not be terminated based on the "sibling exception" in section 366.26, subdivision (c)(1)(B). The court found the exception did not apply and that the children were likely to be adopted, and terminated both Stevens and Ericas parental rights. Steven and the grandparents appeal.
DISCUSSION
I.
Steven contends (A) that there were ICWA violations, (B) problems with the notice of the section 366.26 hearing, and (C) error in the courts refusal to hold a hearing on the grandparents section 388 petition. We reject these claims seriatim.
As explained below, we also reject the grandparents arguments, and thus do not discuss Stevens adoption of his parents contentions.
A.
We reject Stevens claim of ICWA violations because the records shows that the Department fully discharged its duty to investigate his claim of Indian heritage on his mothers side. As explained above, the Department promptly pursued the issue based on the limited information provided by Steven, but could not do more than it did because Steven refused to give the Department his mothers name or contact information, explaining quite specifically that he did not want her to know about the dependency proceedings. As the court explained in In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431, there is nothing whatsoever to prevent a parent, in his briefing or otherwise, from removing any doubt or speculation about the issue of Indian heritage. Here, as in Rebecca, Steven "should have made an offer of proof or other affirmative representation that [someone] would have been able to proffer some Indian connection." (Ibid.)
Stevens reliance on In re D.T. (2003) 113 Cal.App.4th 1449 is misplaced. In that case, the social worker had identifying information but omitted it from the ICWA notices. Here, the social worker had no information because Steven refused to provide any, and nothing was omitted from the ICWA notices.
B.
We reject Stevens contention that he did not receive adequate notice of the "nature and purpose" of the permanent plan hearing. At the hearing held on March 6, 2007, the dependency court told both parents to return to court on June 29 "for a hearing on a permanent plan," and written notice of the hearing was given on March 6. No more was required. (§ 366.26, subd. (I)(3)(A) ["notice of the permanent plan hearing shall be made orally to a party if the party is present or by first-class mail by the clerk of the juvenile court to the last known address of a party not present at the time of the making of the order"].)
Steven is mistaken when he asserts that the courts oral notice had to comply with section 294, which sets out the content of a notice given by the "social worker or probation officer," not the notice given by the court. Moreover, the Departments written notice of the hearing complied with section 294 because it advised Steven that the Department was recommending termination of parental rights and adoption as the permanent plan. As for Stevens assertion that he was "fatally misled" when he received the Departments notice after he had been orally notified of the hearing by the court, we simply cannot see how that could have happened — because there is nothing inconsistent in the notices. There was no due process violation. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)
C.
We summarily reject Stevens contention that the court erred in summarily denying the grandparents section 388 hearing. He lacks standing to raise this issue because it does not affect his rights. (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541; In re Gary P. (1995) 40 Cal.App.4th 875, 877.)
II.
The grandparents contend (A) the court was required to hold a formal hearing on their request for de facto parent status and, after such hearing, should have granted the request, and (B) that their section 388 petition should have been granted.
The grandparents joinder in Stevens arguments is moot in light of our rejection of all of his contentions.
A.
First, we reject the grandparents contention that they were entitled to a hearing on their request for de facto parent status. A noncustodial grandparent of a dependent child has no substantive due process right to a relationship with the child, not even after the grandparent has been granted de facto parent status. (Miller v. California (9th Cir. 2004) 355 F.3d 1172, 1175-1176; In re Brittan K. (2005) 127 Cal.App.4th 1497, 1508.) In any event, the grandparents have never said what benefit they would have obtained by a hearing and, therefore, have not established prejudice, without which we will not reverse. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
Second, we reject the grandparents contention that the court abused its discretion in denying their request for de facto parent status. Nothing the grandparents could have said could have changed the fact that they lived in Texas, that they had no interest in adopting the children, that they never assumed the role of parents on a day-to-day basis for any substantial period of time, that Jessica did not want to live with her grandparents, or that the caretakers, with whom the children have bonded, agreed to post-adoption visits with the grandchildren. (Cal. Rules of Court, rule 5.502 [a de facto parent is a person who has assumed, on a day-to-day basis, the role of the parent, fulfilling the childs physical and emotional needs for care and affection for a substantial period of time]; In re B.G. (1974) 11 Cal.3d 679; In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67.) As the court noted, no purpose would have been served by granting the grandparents request for de facto parent status.
Because the dependency courts ruling on a request for de facto parent status requires the resolution of factual issues and a balancing of the courts factual findings to determine the childs best interest, the only issue on appeal is whether the court abused its discretion — and we must affirm unless the decision was arbitrary, capricious or patently absurd. (In re Jacob E. (2004) 121 Cal.App.4th 909, 919; In re Mark V. (1986) 177 Cal.App.3d 754, 759.)
B.
We reject the grandparents contention that the court should have granted the section 388 petition. The grandparents petition fails because it did not allege any facts suggesting a "change of circumstances or new evidence," or that the proposed change would be in the childrens best interests. (§ 388; In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Stephanie M., supra, 7 Cal.4th at p. 316 [the dependency courts decision is reviewed for abuse of discretion].) All the allegations describe past events — that the grandparents had attended most of the hearings, that their home had been approved, and that they wanted the children to live with them. There was nothing new, nothing different, no change.
In any event and even assuming changed circumstances, the petition fails because there is nothing to suggest the proposed move would have been in the childrens best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 464; In re Daniel C. (2006) 142 Cal.App.4th 1438, 1445.)1
DISPOSITION
The orders are affirmed.
We concur:
ROTHSCHILD, J.
JACKSON, J.