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J.C. v. M.K. (In re A.K.)

California Court of Appeals, Fifth District
Jun 18, 2024
No. F087085 (Cal. Ct. App. Jun. 18, 2024)

Opinion

F087085

06-18-2024

In re A.K., a Minor. v. M.K., Objector and Appellant. J.C., Petitioner and Respondent,

Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Barbero for Petitioner and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No. BAT-22-003088 Stephen D. Schuett, Judge.

Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Appellant.

Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Barbero for Petitioner and Respondent.

OPINION

HILL, P. J.

M.K. (father) appeals the probate court's judgment pursuant to Probate Code section 1516.5 that declared A.K. free from father's parental custody and control.Father raises three issues on appeal. In the first two, father argues that the probate court did not apply the correct standard in terminating his parental rights and the court's order violated his individual right to due process. The third issue concerns the adequacy of the probate court's consideration of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) before terminating father's parental rights. Following our review of the record and the relevant legal authorities, we conclude that the court used the correct burden of proof and did not violate father's right to due process, but we conditionally reverse the court's judgment terminating parental rights and remand for further proceedings relating to ICWA.

The notice of appeal states it is from the "[j]udgment after court trial," entered on August 28, 2023. The appellate record does not contain any document titled "judgment" but does include a document filed on that date, titled, "Order Granting Petition for Freedom from Parental Custody and Control [boldface & some capitalization omitted]," prepared by Guardian's counsel in response to the court's July 26, 2023 ruling that instructed Guardian prepare a judgment for signature by the court. We exercise our discretion to deem the order an appealable final judgment and hereinafter refer to that order as the judgment. (In re Clarissa H. (2003) 105 Cal.App.4th 120, 122, fn. 2.)

Undesignated statutory references are to the Probate Code.

We may also refer to proceedings under this section as a termination of parental rights. (See In re Charlotte D. (2009) 45 Cal.4th 1140, 1142 (Charlotte D.).)

PROCEDURAL AND FACTUAL SUMMARY

I. Guardianship proceedings.

On November 10, 2020, J.C. (Guardian) filed her petition for appointment of temporary guardian of the person, seeking appointment as A.K.'s temporary guardian in Kern County Superior Court case No. BPB-20-002943 (the guardianship case). On December 15, 2020, the probate court appointed Guardian as temporary guardian of A.K. for six months or until such time as letters of guardianship were issued and set a further hearing on January 5, 2021.

We have only a limited number of records from the guardianship case comprised of those records admitted at the court trial to terminate parental rights.

Father filed an objection to the petition for appointment of Guardian because "[Guardian] is not [A.K's] biological parent," "but I am here today." Father alluded to his history with addiction and that he had enrolled in outpatient classes. Father explained that he had allowed A.K. to accompany F.C. (mother) to a program because their home did not have electricity. When A.K. was removed from mother's custody and given to Guardian, father agreed to allow Guardian to care for A.K. until father "was in a better place." Father stated that Guardian had not acknowledged his desire and interest in A.K. and asked to be allowed to take A.K. On June 8, 2021, the court appointed counsel for A.K. and determined that neither mother nor father had the financial ability to pay for counsel. The court continued the matter for father, mother, and A.K. to meet with A.K.'s counsel.

The court trial in the guardianship case commenced on August 31, 2021. The probate court reviewed the Family Court Services (FCS) report and found that ICWA did not apply. After the trial, the court granted the petition to appoint Guardian as A.K.'s guardian, denied visitation to mother, ordered supervised visitation to father, and provided to father a list of professional supervisors. The court advised father that if he had not exercised his visitation rights by the next status hearing on March 1, 2022, the court would cancel his visitation. The court's written order is dated November 2, 2021.

At the status hearing on March 1, 2022, father appeared by video and admitted that he had not exercised his visitation rights. Father explained that he was unemployed and could not afford to pay for the supervised visits with A.K. and his other children. The probate court terminated father's visitation with A.K. pending further order of the court and directed him to file a motion or petition to reinstate his visitation.

Father was removed from the Zoom proceeding because he continued to interrupt the court while making its orders.

On October 25, 2022, father filed his petition for visitation, seeking to reinstate his visitation with A.K. A hearing on his petition was set for March 6, 2023.

II. Guardian's petition to terminate parental rights.

A. Petition to Terminate Parental Rights

Guardian filed a petition to terminate father's parental rights in the instant case on December 21, 2022, alleging that father abandoned A.K. (Fam. Code, § 7822), A.K. had been in Guardian's custody for at least two years, and A.K. would benefit from adoption (§ 1516.5). The probate court issued a citation to father to appear on February 3, 2023.At that hearing, the court appointed counsel for father and continued the matter to permit FCS to complete its report. The court later stayed father's petition for visitation in the guardianship case pending the outcome of the hearing on the petition to terminate father's parental rights in this case.

Although the petition erroneously referred to Family Code section 1516.5, the court accepted the parties' stipulation that the petition be corrected to reference the applicable section as Probate Code section 1516.5.

Guardian also filed a petition to terminate parental rights as to mother but, according to the FCS report, the petition was filed as a separate case and is still pending.

B. Court Trial on Petition to Terminate Parental Rights

The court trial on Guardian's petition to terminate parental rights commenced on June 9, 2023. The court found that ICWA had been found inapplicable in the guardianship case, although the record in this case does not reveal the investigation or basis of the ICWA finding. Although father had told the FCS investigator (Investigator) that mother had Indian heritage, the FCS report does not indicate any attempt to investigate this information. The parties agreed that no additional information had developed since the court's finding in the guardianship case.

The Honorable Stephen D. Schuett presided over the court trial on the petition to terminate parental rights; the Honorable Andrew Kendall presided over the guardianship case.

The court stated that it had read and considered the FCS report that recommended granting the petition and admitted the report into evidence. The court took judicial notice of father's exhibits and admitted them into evidence, including the order appointing temporary guardian, father's objection to guardianship, the minute order from the guardianship trial, the order appointing Guardian, and the minutes from the hearing in which the court terminated father's visitation rights in the guardianship case. The court also admitted into evidence fee waiver orders from father's custody proceedings involving children from a prior marriage and a payroll statement showing his earnings from August 7, 2022, through August 20, 2022.

We set forth below the pertinent information from the report that was not part of the testimony in the case.

(1) Guardian

Guardian testified that she is A.K.'s aunt and father's sister. A.K. was born in August 2020. A.K. was hospitalized for seven weeks after birth and treated for neonatal abstinence syndrome, also described as opioid detoxification. When released from the hospital on October 20, 2020, Child Protective Services (CPS) released A.K. to mother in a treatment program. The following day, mother contacted Guardian and Guardian retrieved A.K. Guardian cared for A.K. for eight hours and then returned him to mother. However, CPS contacted Guardian the same day and requested that she take custody of A.K., take him to the hospital for examination, and report back to CPS. CPS advised Guardian to take A.K. to her home and file a petition for guardianship.

Guardian testified that father consented to the temporary guardianship and agreed father and mother would address their drug problems to regain custody of A.K. Between December 2020 and August 2021, father did not arrange "standard" visitation. Rather, two or three times during that period, father showed up at family gatherings or dropped by Guardian's residence and held A.K. for 20 minutes to an hour. After being appointed temporary guardian, Guardian believed that she had discretion to determine when it would be safe for father to visit A.K. Father asked to visit A.K. seven or eight times between October 2020 and the guardianship hearing. Until June 2021, Guardian never denied father's requests for visits and father would see A.K. when he stopped by. However, father always argued with her and was once asked to leave.

Prior to August 2021, father called Guardian quite a bit to arrange for contact with A.K. but, during the conversations, would argue with Guardian that he was not under the influence, accuse Guardian of stealing A.K., and otherwise blame Guardian for losing custody of A.K. Guardian felt that father's calls were harassing, and she instructed him to arrange for visitation through the court because father would show up intoxicated and angry, screaming and yelling. With the court's involvement, father would know the times when he could visit, and Guardian would know when to expect him. Guardian testified that father last saw A.K. during a family gathering in June 2021. After that time, Guardian blocked father's calls and father did not attempt to Facetime or talk to A.K. on the telephone. Thereafter, father did not drop by Guardian's home to see A.K. or file for visitation, and visitation was later addressed by the court at the trial in the guardianship case. Furthermore, although father's family had several gatherings since June 2021, father did not attend them and so did not see A.K. there either.

During the trial in the guardianship case, Guardian requested that father's visitation with A.K. be supervised. Guardian explained that father's behavior was volatile and unpredictable, and she did not feel safe. While Guardian initially envisioned being the supervisor, father's visits, sometimes accompanied by mother, "became too ... heated." Therefore, Guardian requested that father be drug screened prior to his visits with A.K. and that such visits be professionally supervised. The court granted her request. However, father told Guardian that he could not afford supervised visitation, and she suggested that father obtain employment but would not agree to permit him to visit A.K. without supervision.

Guardian is married and lives with her husband, Jamie C., and two teenage sons (15 &19 years old). Father has three other children in the custody of his ex-wife, and Guardian arranges for A.K. to regularly see them. Guardian and Jamie C. are gainfully employed, and A.K. has been doing well at day care. A.K. will be attending preschool soon, interacts with his other siblings, participates in many family gatherings, loves Jamie C., and knows Guardian and Jamie C. as his only parental figures.

(2) Jamie C.

Guardian and Jamie C. have cared for A.K. for more than two years and wish to adopt A.K. whom they believe would greatly benefit from their stable home. A.K. calls Guardian and Jamie C. "Mommy" and "Daddy." A.K. does not have a parental bond with father and does not recognize him.

At the time of the trial, Jamie C. and Guardian had been married for 22 years, and their four children ranged in age from 15 to 29 years. Jamie C. testified that A.K. was born addicted to methadone, methamphetamine, and heroin, and Jamie C. agreed wholeheartedly that A.K. should live with Guardian's family after his hospitalization. A.K. has lived at Jamie C.'s residence since he was seven or eight weeks old. Since that time, Jamie C. has been A.K.'s provider, protector, caregiver, comforter, and buddy. Jamie C. has bonded with A.K. and considers him to be his son. Jamie C. helped raise A.K., provided his medical insurance, and assisted in his medical care, education, and extracurricular activities for the prior three years. Jamie C. provided A.K. with a swing set that they both play on, taught A.K. to fish in their backyard pool, and took A.K. on trips to the lake and to Disneyland.

According to Jamie C., father would sometimes show up at their home to visit A.K. Guardian blocked father's calls because father threatened and harassed her during their telephone conversations, but father knew where they lived if he wished to speak to them. Father had not come to their home and not seen A.K. for approximately one and a half to two years.

Jamie C. believes that he is the only father that A.K. has known and Jamie C. would "100 percent" adopt A.K.

(3) Father

Father testified that he is A.K.'s biological father. A.K. was born in the hospital in August 2020, and stayed there until approximately October 21, 2020. A.K. was treated for methadone addiction because mother was taking methadone during the pregnancy. Father visited A.K. at the hospital every day except for approximately three days.

Father consented to temporary guardianship with the understanding that he could regain custody once he satisfied CPS as to certain issues. Father could not provide a stable environment for A.K. at that time because his rental unit did not have electricity. Additionally, mother and father were in treatment for addiction and taking methadone.

Guardian took custody of A.K. on October 21, 2020, and between that time and the temporary guardianship hearing in December 2020, Guardian would not permit father to visit A.K., even though he called or texted her 30 to 50 times to do so. Father also arranged for a three-way conversation between himself, Guardian, and a CPS worker to discuss visitation. He arranged the conversation because Guardian had told him that CPS would not allow father to visit, but CPS advised father that they were only recommending that Guardian not permit visitation and that it was Guardian's choice. During the conversation, Guardian advised that she would not risk father visiting A.K. Father did not believe any order gave him a legally enforceable right to visit A.K.

Father thought he attended the temporary guardianship hearing on December 8, 2020, and that he may have received papers relating to the hearing in the mail, but he could not recall. Father testified that he consented to the temporary guardianship and believed that once he satisfied CPS, he would regain custody of A.K. Father was aware that Guardian had been appointed temporarily until the next court date but did not know if the appointment order provided for visitation. Between the December 8, 2020 appointment of the temporary Guardian and the guardianship trial on August 31, 2021, father visited A.K. two or three times. Father also made a wagon for A.K. as a birthday gift that he delivered to Guardian's home. Father had more than 100 conversations and text messages with Guardian to arrange for visits with A.K., however, Guardian would discuss father's wrongdoings and ask for his apology. Father denied that he threatened Guardian during his calls and texts. Father did not contact the police for assistance because he believed that he could not see A.K. until he had a paternity test and had no legal rights to enforce. Father had not seen A.K. since June 2021.

Father appeared at the trial in the guardianship case on August 31, 2021, to object to the guardianship, and he filed a written objection. At that time, the court ordered supervised visitation, but father did not exercise his right to supervised visits because he could not afford to pay for them. Father did not know that he would lose rights to supervised visitation if he failed to arrange for any visits. In March 2022, the court suspended father's visitation rights, and father had not visited A.K. since. Father explained that he could not afford supervised visits because between the time of the guardianship hearing until his visitation rights terminated, he received approximately $450 a week from unemployment benefits, however, $435 dollars of that was taken for child support. His girlfriend offered to pay for a supervised visit, and he also requested financial assistance for visitation from another sister.

Father had three children born before A.K. Father later testified that his unemployment benefits terminated in September 2020.

Father testified that he did not provide any financial support to Guardian for A.K. until garnishment of his wages for child support commenced. At the time of the temporary guardianship hearing in December 2020, defendant had not been working since the end of 2018. Father was receiving worker's compensation benefits from his employer from the end of 2018 until the beginning of 2019 but could not return to work because the company went out of business during COVID and did not hire him back. He received unemployment benefits from January 2019 until September 2020. Thereafter, Father's live-in girlfriend supported him for a few months until he went back to work on July 5, 2022. Father testified that he had been living with his girlfriend since 2018, but he did not ask her for assistance as to the supervised visits because they were behind on rent and electric payments. While unemployed, Father only went to three job interviews, the last one resulting in his employment.

As provided above, according to the FCS report, this commenced in January 2023.

We note that father estimated the timing of his employment based upon the COVID crisis. However, the COVID crisis commenced in March 2020 and not 2019. (See Executive Department State of California Proclamation of a State of Emergency (Mar. 4, 2020) <https://www.gov.ca.gov/ wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf> [as of June 18, 2024], archived at <https://perma.cc/W85V-VLNF>.) Therefore, his testimony as to employment history could be off by one year.

Father's testimony that his girlfriend assisted him for a few months after his unemployment stopped indicates that he was mistaken as to the time period of the benefits earlier in his testimony.

Father testified that he opposed the termination of his parental rights because he always intended that Guardian's custody of A.K. would terminate once he was "on [his] feet." Although Father had not seen A.K. in two years, Father hoped that he could reestablish a relationship with Guardian so that he could slowly ease into A.K.'s life and A.K. could get to know him, but he did not wish to just take A.K. from her. At the time of the trial, Father had a stable residence for A.K. with two bedrooms, one decorated for his daughter and the other with bunkbeds for his sons.

C. FCS Report

The FCS report contained much of the information to which the witnesses testified. The report described that A.K. was two years old, in home day care, current with shots, and had met his developmental milestones. A.K. liked to ride his bike and play hide and seek. A.K. had bonded with two of Guardian's children that still lived at home. Guardian reported that A.K. "would not know [father] at all."

Investigator met with Guardian, Jamie C., and A.K. on March 24, 2023. While A.K. was too young to be interviewed, he appeared happy, well-adjusted, and affectionate with Jamie C. A.K. sat on Jamie C.'s lap, hugged his neck, and referred to Guardian and Jamie C. as "Mommy" and "Daddy."

(1) Father's interview

Father told Investigator that he rented a home, lived alone, was in good health, and was taking methadone prescribed by a doctor. He had been in a relationship with mother between 2018 and 2020. Father had three children from a previous marriage (ages 1115) but had not seen them because he could not afford the supervised visits.

Father explained that he originally consented to the guardianship to avoid CPS taking custody of A.K. He assumed that he would have regular visitation, but "she would get mad at me and take my visits away." Father acknowledged that he visited A.K. three or four times between December 2020 and June 2021 when he last saw A.K. Father asked for visits but ignored Guardian's excuses and showed up anyway. He "admitted he would get upset, 'yell and scream' and curse at her." Guardian advised Father that he "can't just come over anytime."

Guardian blocked Father's calls approximately one and a half years prior to Investigator's interview on March 28, 2023. Even though he was granted visitation rights at the guardianship hearing, Father did not visit A.K. because he could not afford supervised visits with all of his children and, even if he could afford to visit one, he would be unable to choose which child.

Father filed for visitation in the guardianship case on October 25, 2022, and he believed that Guardian filed the petition to terminate his rights to prevent visitation. Father paid child support for A.K. beginning January 23, 2023, when his wages were garnished. Guardian is close with Father's ex-wife and complained that he was excluded from family gatherings while his ex-wife and children were included.

(2) Guardian's interview

Guardian described herself as married with three children (ages 15, 19, 21), with another child from a previous marriage (age 28). Guardian explained that she wished to make A.K.'s life more stable and intended to adopt A.K. if the court granted her petition to terminate father's parental rights. A.K. has lived with Guardian since she took custody within the first 24 hours of his release from the hospital. At that time, A.K. had been injured while in mother's care and CPS asked Guardian to take him.

When asked about blocking father's calls, Guardian explained that father left threatening messages on her phone on February 14, 2022, in which he threatened to slit her throat. She filed a police report regarding the messages on that date. Father also sent her video recordings of himself yelling, crying, and swearing. Guardian showed Investigator a video, from January 2023, in which father held a gun to his head while he was crying and yelling.

Guardian told Investigator that after she was appointed temporary guardian, father saw A.K. sporadically a few times between December 2020 and June 2021. However, father's behavior was erratic, and she feared that his visits would not be safe due to his unpredictability. Father last saw A.K. at a family gathering in June 2021.

Guardian is close with father's ex-wife and three children and sees them once a week at sporting events and family gatherings.

(3) FCS recommendation

Investigator summarized that A.K. resided with Guardian and her family since October 2020, and they have been his primary parental figures and caregivers. A.K. has been well cared for and has a secure bond with Guardian, Jamie C., and their children. Father, however, has had no contact with A.K. since June 2021 and has no relationship with A.K. Investigator noted that while father blames Guardian for his lack of relationship with A.K., it appeared to be caused by his behavior as evidenced by his lack of visitation with his other children, and father had no understanding of how his own behavior led to these circumstances. Investigator recommended granting the petition as in A.K.'s best interest pursuant to section 1516.5.

D. Court Ruling and Judgment

The court issued its ruling on Guardian's petition on July 26, 2023. After summarizing the proceedings and testimony, the court held that while Guardian had established a prima facie case of abandonment pursuant to Family Code section 7822, subdivision (a)(2), father rebutted the presumption and, therefore, Guardian failed to establish by clear and convincing evidence that father intended to abandon A.K. Addressing section 1516.5, the court found that Guardian had established that A.K.'s parents did not have legal custody of him and A.K. had been in Guardian's physical custody for two years. The court further found that Guardian and Jamie C. had established a bond with A.K., A.K. considered them his parents, and A.K. had bonded with their children. The court noted that A.K. had spent his entire life with Guardian and her family, father had a brief relationship with A.K. after his birth that was eliminated during the guardianship when father failed to visit A.K. more than a few times, and A.K. no longer recognized father.

The court stated that it had "balanced the nature of the bond between [A.K.] and [Guardian], and the attendant benefits of the stability and benefits of adoption, against the lack of any relationship between [father] and [A.K.]." The court concluded that "the benefits of adoption outweigh the benefits of long-term guardianship" and determined that "the best interest of [A.K.] is for the termination of [father]'s parental rights and [A.K.]'s adoption by [Guardian] and [Jamie C.]."

On August 28, 2023, the court filed the order granting the petition for freedom from parental custody and control and terminating father's parental rights as of July 26, 2023.

E. Appeal

Father filed this timely appeal on October 26, 2023.

DISCUSSION

I. The court applied the correct burden of proof in granting the petition to terminate father's parental rights.

Father argues that the court failed to apply the correct legal standard in terminating his parental rights pursuant to section 1516.5 because it failed to state the correct burden in making its ruling and, therefore, we cannot be sure that it applied the correct standard. As respondent notes, however, the probate court's ruling specifically set forth the requirements of section 1516.5 and then stated, "The guardian bears the burden of making the requisite showings under Probate Code section 1516.5 by clear and convincing evidence," and cited to Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1127 (Ann S.). Therefore, the court applied the correct standard of proof in making its determination pursuant to section 1516.5.

II. Father's right to due process was not violated by the probate court's termination of his parental rights.

A. Applicable Law and Standard of Review

A probate guardianship is a private custody arrangement, approved but not supervised by the court; it is distinct from a guardianship ordered as a result of juvenile dependency proceedings. (Ann S., supra, 45 Cal.4th at p. 1133.) Probate guardianships provide an alternative placement for children who cannot safely remain with their parents. (Id. at p. 1122.) "It is the family members and the guardians who determine, with court approval, whether a guardianship is established, and thereafter whether parent and child will be reunited, or the guardianship continued, or an adoption sought under section 1516.5." (Ibid.)

When the court appoints a guardian, the parent's authority ceases. (Ann S., supra, 45 Cal.4th at p. 1123.) While the court has discretion to grant visitation, parental rights are otherwise completely suspended for the duration of the probate guardianship and the guardian assumes the care, custody, and control of the child. (Id. at pp. 1123-1124.) "Unless ended by court order, the guardianship continues until the child [either] 'attains majority or dies.'" (Id. at p. 1124.) "The court may terminate the guardianship on a petition by the guardian, parent, or child, based on the child's best interest." (Ibid.)

Here, Guardian petitioned to terminate father's parental rights pursuant to section 1516.5, which allows a child in a probate guardianship to be declared free from parental custody and control if (1) the parents do not have legal custody of the child; (2) the child has been in the guardian's physical custody for at least two years; and (3) the court finds that the child would benefit from being adopted by the guardian. (§ 1516.5, subd. (a).)

" 'Benefit' in this context means that adoption would be the best alternative for the child," and it "requires a determination of the child's best interest." (Ann S., supra, 45 Cal.4th at p. 1128, fn. 10.) In making this determination, the court considers all factors relating to the child's best interest, including, but not limited to, the nature and extent of the child's relationship with the birth parents, the guardian and the guardian's family, and any siblings or half siblings. (§ 1516.5, subd. (a).) Other relevant factors "include the circumstances leading to guardianship, the parent's efforts to maintain contact with the child, any exigencies that might hamper those efforts, and other evidence of commitment to parental responsibilities." (Ann S., at p. 1132.) The guardian bears the burden of making the requisite showings under section 1516.5 by clear and convincing evidence. (See Ann S., at p. 1127.)

"When the clear and convincing standard of proof applied in the trial court, an appellate court should review the record for sufficient evidence in a manner mindful of the elevated degree of certainty required by this standard." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000-1001.) "In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Id. at p. 1005.) We indulge in all reasonable inferences to uphold the judgment. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382 (Noreen G.).) "[W]e do not resolve conflicts in the evidence, pass on the credibility of witnesses .... [Citation.] We merely determine if there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact." (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.)

Our Supreme Court has clarified that due process does not always require a finding of current parental unfitness before the termination of parental rights in a proceeding under section 1516.5. (Ann S., supra, 45 Cal.4th at p. 1128.) It emphasized that, "due process is satisfied if unfitness is established at an earlier stage, and parental rights [are] terminated later based on the child's best interest." (Id. at p. 1134.) A section 1516.5 proceeding, however, does not separate the child from parental custody. "The family," the high court explained, "is dismembered not at the time of a section 1516.5 hearing, but at least two years earlier when the guardianship is established." (Ann S., at p. 1133.) "It would be anomalous to require proof in every case, by clear and convincing evidence, that a mother or father who has had no custodial responsibilities for two or more years is currently an unfit parent." (Id. at p. 1135.) The Court, however, noted that the statute is open to constitutional challenge as applied to an individual parent. (Id. at p. 1132; see also In re Charlotte D. (2009) 45 Cal.4th 1140, 1147-1149 (Charlotte D.))

In Charlotte D., the Supreme Court commented, "It seems unlikely that a court would find it in a child's best interest under section 1516.5 to terminate the rights of a fully committed, responsible, and capable parent who finds an extended probate guardianship unavoidable under exigent circumstances. Nevertheless, factors similar to those set out in Kelsey S. for evaluating commitment to parental responsibility might support a parent's claim that the best interest of the child standard is unconstitutional as applied to him or her." (Charlotte D., supra, 45 Cal.4th at pp. 1148-1149.) In Kelsey S., the court reviewed a statutory scheme permitting the termination of an unwed father's parental rights if adoption was in the child's best interest, even though the mother had prevented the father from receiving the child into his home and establishing the status of "presumed father." (Kelsey S., supra, 1 Cal.4th at pp. 822-825; see Ann S., supra, 45 Cal.4th at p. 1130.) The factors identified by the Kelsey S. court included the father's demonstration that he was willing to assume full custody of the child and not merely block adoption by others and "the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Kelsey S., at p. 849; see Charlotte D., at p. 1148.)

Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).

Therefore, in the context of this case, we look at whether father has "demonstrated the necessary commitment to his parental responsibilities," so as to place him in a different position than the majority of parents who face termination under section 1516.5. (Kelsey S., supra, 1 Cal.4th at p. 850.)

B. Analysis

Father has not demonstrated comparable factors as identified by the Kelsey S.

court. (See Kelsey S., supra, 1 Cal.4th at p. 849.) Father has failed to demonstrate" 'a willingness himself to assume full custody of the child.'" (Id. at p. 849.) Father initially consented to the temporary guardianship because he was unemployed, had no electricity at his residence, and was taking methadone. While father objected to the appointment of Guardian, he never filed a petition to terminate the guardianship and reacquire custody of A.K. Thereafter, father filed a petition for visitation but, again, did not seek custody of A.K. At the hearing on the petition to terminate his rights, father testified that he was only seeking visitation. Therefore, father's objection was merely to block the termination of his parental rights and obtain visitation but not to obtain custody of A.K. (See ibid.) In so doing, father also failed to seek prompt legal action to seek custody of A.K. (See ibid.)

Furthermore, while father publicly acknowledged paternity, he did not provide financial support to A.K. commensurate with his ability to do so. (See Kelsey S., supra, 1 Cal.4th at p. 849.) While he was unemployed until he obtained employment in July 2022, father did not commence support payments to A.K. until his wages were garnished in January 2023.

Father attempts to argue that he was a fully committed, responsible, and capable parent who found an extended probate guardianship unavoidable under exigent circumstances as described in Charlotte D., supra, 45 Cal.4th at pages 1148-1149. However, as in Charlotte D., father did not argue that his parental performance entitled him to special consideration under the due process in the probate court. (See id. at p. 1149.) Like Charlotte D., "[t]he undisputed facts in the record show that he fell far short of the level of parental commitment contemplated in Kelsey S." (Ibid.) The Supreme Court found that Charlotte D.'s father "manifestly failed to fulfill his parental responsibilities and did not promptly defend his custodial rights," that he "abandoned his responsibilities and formally waived his parental rights when the guardianship was established," and even when employed, had yielded custody to his parents as guardians. (Ibid.) "These facts alone would preclude father from establishing a full commitment to parental responsibility." (Ibid.) In addition, Charlotte D.'s father failed to make child support payments, behaved inappropriately to the guardians, abused his visitation rights, and engaged in criminal behavior. (Ibid.)

We acknowledge that here, unlike in Charlotte D., father was unemployed when he consented to Guardian's temporary guardianship, later objected to the guardianship, and has not engaged in criminal conduct resulting in his arrest. Nonetheless, father fails to demonstrate that exigent circumstances were fully responsible for the lengthy guardianship. A.K. was two and a half years old at the time of the court trial. By that time, he had not seen father in person in over two years, and he had been cared for by Guardian on a full-time basis since he was two months old. While father visited A.K. almost every day after he was born during his two-month hospital stay, he only saw A.K. three or four times thereafter. Guardian and Jamie C. testified that they had bonded with A.K., father had not, and that A.K. called them "Mommy" and "Daddy."

Father did, however, threaten to slit Guardian's throat, which Guardian reported to police.

Father testified that he had obtained employment, which may address some of the circumstances that led to the establishment of the guardianship, and filed for visitation, which may demonstrate a commitment to his parental responsibilities. Father, however, did not present any evidence to rebut the overwhelming evidence that A.K.'s only meaningful and established relationship was with Guardian and Jamie C. Father's recent circumstances were substantially outweighed by A.K's need for the secure and permanent attachment that he had with Guardian.

Father acknowledged that he did not have a relationship with A.K. but claimed that Guardian and Jamie C. were responsible for that because they would not accept his telephone calls. However, the record shows that Father did not cooperate with Guardian to arrange for visitation prior to the guardianship hearing and, while he testified that he did not threaten Guardian, he admitted to Investigator that he had yelled and cursed at her. Father testified that he could not visit A.K. prior to the court-ordered supervised visits because Guardian had blocked his phone calls. However, father knew where Guardian and A.K. lived but did not attempt to visit.

Father also claimed that he could not visit with A.K. after the guardianship hearing because Guardian requested the court to order professional supervision during his visits and he was not able to afford it. However, father's own actions necessitated these measures. Guardian testified that father arrived to visit A.K. while he was intoxicated, became angry, then screamed, yelled, and cursed. As a result, Guardian blocked father's calls after advising him to arrange for visitation with the court. However, father failed to formally request visitation and waited until the guardianship trial in August 2021 to address the issue. At that time, the court ordered drug and alcohol testing prior to any visit and that such visits be professionally supervised because Guardian expressed fear for her and A.K.'s safety due to father's conduct. Even after that hearing, father continued to threaten Guardian, and she filed a police report in February 2022, prior to the March 2022 hearing at which time the court terminated visitation because father had failed to exercise his rights. During that hearing, the court removed father from the Zoom meeting because he interrupted and argued with the court during its ruling. Guardian's description of father's behavior was verified by Investigator who viewed a video father sent to Guardian that showed father crying and holding a gun to his head in January 2023.

Once the court ordered supervised visits, father argues that the cost of a professional supervisor prevented visitation. However, the record shows no effort by father to seek reconsideration by the court or even to attend family gatherings where he could see A.K. without a professional supervisor. There was no order preventing A.K. from attending such family functions, and Guardian testified that he was aware when they occurred. Father also attributed his inability to pay for supervised visits to his unemployment and difficulty in finding a job due to COVID. However, father testified that during his lengthy period of unemployment, he only interviewed for three jobs. Additionally, father testified that he obtained employment in July 2022 but did not formally file for visitation until October 2022, several months later.

As a result of father's voluntary and prolonged abdication of his parental duties, this is not an exceptional circumstance in which termination of parental rights resulted in a violation of father's constitutional rights.

III. The record is insufficient to demonstrate that the probate court complied with its duties under ICWA.

Father argues that the court erred in failing to fulfill its duty to inquire about Native American ancestry and notice the tribes pursuant to ICWA. We agree that the court failed to comply with its ICWA duties and conclude a limited remand is necessary for the court to comply with ICWA.

A. Background

(1) Father's termination of rights case

In this case, Guardian filed form ICWA-010(A), which stated that she inquired of mother and father, and they gave no reason to believe A.K. is or may be an Indian child. Guardian also filed form ICWA-020 and declared under penalty of perjury that A.K. did not have Indian status. However, father and mother never completed any such form.

Investigator did not speak to A.K. given A.K'.s age, but did speak to Guardian, Jamie C., and father. While Investigator acknowledged that Guardian had filed a petition to terminate mother's parental rights, his report does not reflect that he spoke with mother. Through these interviews, Investigator learned from Guardian that she was not aware of any Native American ancestry associated with A.K., but father advised that mother had Native American ancestry through an unknown tribe. Investigator noted that the court in the guardianship case found that ICWA was not applicable on August 31, 2021 (the date of the guardianship trial). However, no information pertaining to the ICWA investigation or inquiries made in that case is included in the FCS report in this case, nor does any information appear in our record on appeal. The clerk's record does not indicate that any inquiry was made of extended family members, although father's trial testimony mentioned he has at least one sister other than Guardian.

Father and Guardian first appeared in this case on February 3, 2023, but the court did not make any ICWA inquiry. The court made no inquiry at the next hearing on April 14, 2023. On June 9, 2023, the probate court addressed ICWA at commencement of the court trial on Guardian's petition for freedom from parental custody and control. The court stated:

"The [F]amily [C]ourt [S]ervice[s] investigative report indicates that [A.K.] does not have Native American heritage/ I know the probate court had already made a finding with respect to ICWA, but do I have any new information that might lead the Court to believe there is Native American heritage with respect to the minor?"

When neither Guardian nor father advised that they possessed new information, the court found that the provisions of ICWA did not apply.

(2) Guardian's request for judicial notice of documents in her case to terminate mother's parental rights

After briefing was complete in this case, Guardian filed a motion requesting that we take judicial notice of the following five documents filed in Kern County Superior Court case No. BAT-22-003089 (mother's case): (1) March 30, 2023 FCS Investigator's Report; (2) July 03, 2023 Notice of Child Custody Proceeding for Indian Child (form ICWA-030); (3) July 19, 2023 Proof of ICWA Compliance; (4) October 27, 2023 Tribe Responses to ICWA-030; and (5) December 7, 2023 Notice of Entry of Judgment Declaring Minor Free from Parental Custody and Control with the court's November 28, 2023 order granting Guardian's petition to terminate mother's parental rights attached). (See Evid. Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rules 8.54, 8.252.) Father opposes this request.

The March 30, 2023 FCS Investigator's Report includes a brief ICWA discussion indicating that mother believed her father has Native American ancestry through an unknown tribe and also notes that the court previously found that ICWA did not apply in the guardianship case. The report did not provide any information as to the ICWA investigation or inquiries made in the guardianship case.

An ICWA-030 notice was provided to the Makah Tribe and the Gila River Indian Community, which included an ICWA-010(A) form stating mother was questioned and gave reason to believe A.K. is or may be an Indian child during court testimony on April 14, 2023. The Gila River Indian Community responded that A.K. is not eligible for membership in the tribe. The Makah Tribe responded that A.K. is not a member and the information provided was not sufficient to determine whether he was eligible for membership. A copy of the court's November 28, 2023 order granting Guardian's petition to terminate mother's parental rights and finding that ICWA was not applicable is attached to the December 7, 2023 Notice of Entry of Judgment.

We note that Judge Lisa M. Pacione granted the petition and not Judge Stephen D. Schuett, who presided over father's petition.

B. Applicable Law and Standard of Review

Section 1516.5, subdivision (d) provides: "This section does not apply to ... any Indian child." Thus, when the petition to terminate parental rights was filed, the probate court, Investigator, and Guardian had the affirmative and continuing duty to inquire whether A.K. is or might be an Indian child. (See Noreen G., supra, 181 Cal.App.4th at p. 1387, quoting Cal. Rules of Court, rule 5.481(a)(1); see also Prob. Code, § 1459.5, subd. (b) [Welf. &Inst. Code, §§ 224.3-224.6 apply to proceedings where ICWA applies].)

Effective January 1, 2019, the Legislature extensively revised the Welfare and Institutions Code to comply with the Bureau of Indian Affairs regulations (25 C.F.R. §§ 23.101-23.144) by passing Assembly Bill No. 3176 (2017-2018 Reg. Sess.). (Stats. 2018, ch. 833, § 5.) Prior to this amendment, Welfare and Institutions Code former section 224.3 contained the provisions which are now codified in Welfare and Institutions Code section 224.2 (See Stats. 2006, ch. 838, § 32), but section 1459.5 has not been amended since it was added in 2006 and does not reflect the changed code sections (see Stats. 2006, ch. 838, § 18).

The party seeking the termination of parental rights or a declaration freeing the child from the custody and control of parents must ask the child, parents, extended family members, and others with an interest in the child whether the child may be an Indian child. (Cal. Rules of Court, rule 5.481(a)(1).) The duty of inquiry requires the court to inquire at the first appearance in the proceeding whether each participant knows or has reason to know the child is an Indian child and order the parents to complete a Parental Notification of Indian Status (form ICWA-020). (Cal. Rules of Court, rule 5.481(a)(2).) If the parent or parents are not at the hearing, the court must order the person with the inquiry duty to inform the parent that the court ordered the parent to complete the form. (Cal. Rules of Court, rule 5.481(a)(3).)

If the social worker or investigator knows or has reason to know or believe that an Indian child is or may be involved, they must make further inquiry by at least interviewing the parents and extended family members. (Cal. Rules of Court, rule 5.481(a)(4).) Additionally, "[b]ecause 'biological descendance' is often a prerequisite for tribal membership ... [a relative's] suggestion that [the child] 'might' be an Indian child [is] enough" to satisfy the minimal showing required to trigger the statutory notice provisions. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408, fn. omitted; see In re M.E. (2022) 79 Cal.App.5th 73, 81 [" 'recent amendment to [Welfare and Institutions Code] section 224.2, subdivision (e) confirms the "reason to believe" standard requiring further inquiry should be broadly interpreted'" and includes information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe], quoting with approval In re S.R. (2021) 64 Cal.App.5th 303, 317.)

We review claims of inadequate inquiry into a child's Indian ancestry employing a hybrid standard and review the court's determination for substantial evidence and abuse of discretion. (In re K.H. (2022) 84 Cal.App.5th 566, 589.) The court's finding that ICWA does not apply to the proceeding must be supported by substantial evidence that there is no reason to know the child is an Indian child and that a proper and adequate further inquiry into that issue was conducted with due diligence. (In re K.H., at p. 601.)

C. Analysis

In this case, the court failed to make any of the necessary inquires during the initial and subsequent hearings. Father was not ordered to complete a Parental Notification of Indian Status (form ICWA-020). Guardian, who is father's sister, completed such a form, but even if that satisfied ICWA as to A.K.'s paternal side of the family, mother provided no information as to her Native American ancestry. The court never directly asked Guardian or father whether A.K. had Indian ancestry.

Additionally, father advised Investigator that mother had Native American ancestry, but the FCS report does not indicate any follow up to that information. There is no evidence that any maternal or paternal extended family members were questioned concerning A.K.'s possible Indian status. While the court asked Guardian and father during trial whether there was new information in addition to that provided in the guardianship case, there is no record whether or what inquiry was made as the basis for the ICWA finding in the guardianship case.

Guardian has requested we take judicial notice of documents filed in mother's case, a separate case to terminate mother's parental rights. In addition to being filed in a separate case, a different judicial officer made the ICWA finding in mother's case.(See, e.g., In re Zeth S. (2003) 31 Cal.4th 396, 405 [absent exceptional circumstances, appellate courts should not consider postjudgment evidence]; In re Robert A. (2007) 147 Cal.App.4th 982, 989-990 [rejecting consideration of records from a separate dependency proceeding on appeal, in part, because presided over by different judicial officer].) Additionally, the ICWA findings in this case predated the ICWA findings in mother's case. The court made the formal ICWA findings in mother's case on November 28, 2023, and terminated mother's parental rights as of November 17, 2023, while a different judicial officer presiding over father's case made ICWA findings on August 28, 2023, and terminated father's parental rights as of July 26, 2023.

The courts' ICWA findings are included in the orders terminating parental rights.

Additionally, "[t]he augmentation procedure [(Cal. Rules of Court, rule 8.155(a))] cannot be used to bring up matters occurring during the pendency of the appeal because those matters are outside the superior court record." (In re K.M. (2015) 242 Cal.App.4th 450, 456.) We cannot augment the record on appeal with the documents from mother's case because California Rules of Court, rule 8.155(a) only permits augmentation with documents filed or lodged in in the case currently on appeal (father's case.)

We grant Guardian's request to take judicial notice of the documents, however, not to assess whether the order terminating parental rights was based on an insufficient further inquiry by the court or FCS, but rather to assess whether there was resulting prejudice, which is a question of law for this court to decide, not one for the trier below. (See In re Z.N. (2009) 181 Cal.App.4th 282, 298-299 [taking judicial notice of documents filed in a half siblings' cases for purpose of assessing prejudice].)

The documents subject to judicial notice from mother's case do demonstrate mother was asked about her Native American ancestry and that notice of the proceedings was given to two tribes in which A.K. may have been eligible for membership based upon mother's information. However, these documents also include information as to several of mother's extended family members, but there is no evidence any attempt was made to inquire with those family members. "There may be cases in which there is no one else to ask beyond the parents, but, if that is so, the record must be developed to reflect that fact and supported by documentation. [Citation.] Properly developed and documented, 'the court has relatively broad discretion to determine [that] the . . . inquiry was proper, adequate, and duly diligent on the specific facts of the case.'" (In re Jerry R. (2023) 95 Cal.App.5th 388, 428, first bracketed insertion added.)

Here, even considering the documents subject to judicial notice, there is no record that any maternal or paternal extended family members were asked whether A.K. may be an Indian child, although at least one of father's family members and several of mother's extended family members who could have been contacted exist. (See Cal. Rules of Court, rule 5.481(a).) The probate court and Investigator relied on the court's ICWA finding in the guardianship case, but the basis for the court's finding in that case does not appear in the record of this case. Additionally, FCS's failure to make any inquiry of known and available extended family members left the juvenile court without sufficient evidence upon which to find that the inquiry was proper, adequate, and duly diligent. In this case, FCS's "inquiry and documentation fell well short of what is required under California law ._ ([Welf. &Inst. Code, ]§ 224.2, subd. (b); [Cal. Rules of Court, ]rule 5.481(a)(5).) As a result of the failure to develop the record beyond questioning [mother, father, and Guardian], the [probate] court's implied finding of a proper, adequate, and duly diligent inquiry is unsupported by substantial evidence and its contrary conclusion was an abuse of discretion. ([Welf. &Inst. Code, ]§ 224.2, subd. (i)(2).)" (In re K.H., supra, 84 Cal.App.5th at p. 591.)

"Where a record is silent or nearly silent with respect to an ICWA inquiry at the first step, a finding of harmlessness necessarily rests on speculation." (In re K.H., supra, 84 Cal.App.5th at p. 611.) Where there has not been a proper inquiry, "the error is prejudicial because neither the agency nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue." (Id. at p. 620.)

Accordingly, the court's finding that ICWA does not apply is conditionally reversed, and this matter is remanded. On remand, the court shall ensure that FCS conducts a proper, adequate, and duly diligent inquiry under Welfare and Institutions Code section 224.2, subdivision (b) and document its inquiry in the record in compliance with California Rules of Court, rule 5.481(a)(5). Inasmuch as the record reflects A.K. had available relatives on both the maternal and paternal sides of his family, the inquiry should be of sufficient reach to ensure that if there is information suggesting A.K. is or may be an Indian child, it is gathered.

This should not be interpreted as requiring an exhaustive search for and questioning of every living relative of A.K. We leave that determination to the probate court because it is better positioned to evaluate the evidence provided by FCS. So long as the court ensures the inquiry is reasonable and of sufficient reach to accomplish the legislative purpose underlying ICWA and related California law, the court will have an adequate factual foundation upon which to make its ICWA finding. (Welf. & Inst. Code, § 224.2, subd. (i)(2).)

DISPOSITION

The judgment is conditionally reversed and remanded for the limited purpose of compliance with ICWA, including the probate court's entry of findings related to ICWA at the conclusion of the inquiry. If, after proper and complete inquiry, A.K. is found not to be an Indian child falling within the provisions of the ICWA, the judgment shall be reinstated. However, if the court determines ICWA applies to this case, the court is ordered to conduct a new court trial and proceed in accordance with ICWA.

WE CONCUR: DETJEN, J. SMITH, J.


Summaries of

J.C. v. M.K. (In re A.K.)

California Court of Appeals, Fifth District
Jun 18, 2024
No. F087085 (Cal. Ct. App. Jun. 18, 2024)
Case details for

J.C. v. M.K. (In re A.K.)

Case Details

Full title:In re A.K., a Minor. v. M.K., Objector and Appellant. J.C., Petitioner and…

Court:California Court of Appeals, Fifth District

Date published: Jun 18, 2024

Citations

No. F087085 (Cal. Ct. App. Jun. 18, 2024)