Opinion
D083810
09-17-2024
In re K.J. et al., Minors. v. D.J., Defendant and Appellant. J.G. et al., Plaintiffs and Respondents,
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant. Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 22AD000151C Ana Espana, Judge. Conditionally reversed and remanded with directions.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
No appearance for Plaintiffs and Respondents.
McCONNELL, P. J.
D.J. (Father) appeals a judgment terminating parental rights to his sons, K.J. and W.J. (the children), due to abandonment to facilitate their adoption by their legal guardians and maternal grandparents T.G. and J.G. (the grandparents). (Fam. Code, § 7822.) Father contends the judgment must be reversed because the court violated Penal Code section 2625 by conducting the hearing in his absence when he had not waived his right to appear. Father also asserts a conditional reversal and remand is required because the San Diego County Health and Human Services Agency (the Agency) and the juvenile court did not comply with the initial inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA, 25 U.S.C. § 1901 et seq.) and related California law because the Agency failed to fulfill its inquiry duties and the juvenile court failed to make ICWA findings as to him.
Undesignated statutory references are to the Penal Code.
We reject Father's first contention but agree the ICWA inquiry was deficient. Accordingly, we conditionally reverse the judgment and remand for compliance with ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
We need not recite the underlying facts in detail given the limited issues on appeal. Briefly summarized, Father and T.T. (Mother) used drugs and were often homeless. Sometime in 2012 or 2013, Father was incarcerated and Mother left the children with a friend who contacted the grandparents. Since that time, the children have had no contact with Father and only token contact with Mother. In March 2022, the grandparents filed a petition seeking to declare then 12-year-old K.J. and 11-year-old W.J. free from Father's custody under Family Code section 7822. The petition included form ICWA-010 indicating Mother gave no reason to believe the children were Indian children and form ICWA-020 in which Mother asserted she had no Indian ancestry.
The court set a hearing on the petition for April 2022, and a citation was issued, but the grandparents could not locate Father. The court continued the hearing multiple times, with new citations issued for each continuance. In October 2022, the Agency submitted a report noting it found two addresses for Father. In September 2022, Father called the Agency, confirmed one address, and objected to the pending adoption. At some point, Father became incarcerated. In March 2023, Father was served in prison with a copy of the citation. At the hearing, Father did not appear and the court appointed him counsel.
Ultimately, trial on the petition took place in January 2024. Father did not appear, with his counsel stating Father was incarcerated, refused to communicate with her office despite multiple attempts, and had notice of the proceedings. The matter proceeded on the papers with the court finding the presumption of abandonment had been established and adoption was in the children's best interest. The court declared the children free from Father's and Mother's custody and control.
DISCUSSION
I. NO ERROR GRANTING PETITION IN FATHER'S ABSENCE
Father argues the court erred by proceeding with trial in his absence in violation of section 2625, subdivision (d) and claims the error was prejudicial. We are not persuaded.
In a proceeding under Family Code section 7800 et seq. to terminate the parental rights of a prisoner, the court shall order the prisoner be given notice of the proceeding. (§ 2625, subd. (b).) If the court receives "a statement from the prisoner or the prisoner's attorney indicating the prisoner's desire to be present during the court's proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court. (Id. at subd. (d).) Additionally, a petition under the Family Code "may not be adjudicated without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or a designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding." (Ibid., italics added.)
The California Supreme Court determined the phrase "the prisoner or the prisoner's attorney" as requiring "both the prisoner and the prisoner's attorney must be present." (In re Jesusa V. (2004) 32 Cal.4th 588, 622 (Jesusa V.).) "Only by requiring the prisoner either to be present or to have executed a waiver of his or her appearance can the court ensure the prisoner actually received the notice." (Id. at pp. 623-624.) However, an incarcerated parent has no due process right, independent of section 2625, to attend a hearing at which his or her lawyer was present. (Id. at pp. 625-626.)
If an incarcerated parent's statutory right to be present at a proceeding where parental rights may be terminated is violated, we assess whether the error was harmless. (Jesusa V., supra, 32 Cal.4th at pp. 624-625.) Under this analysis, error requires reversal if it is "reasonably probable that a result more favorable to [Father] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
As a preliminary matter, Father forfeited his argument by failing to raise it in the trial court. Father's counsel appeared at the hearing and did not object to proceeding with the hearing in Father's absence or request a continuance to permit him to be transported from jail to the court; thus, any claim of error has been forfeited. (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200, fn. 7 [parent cannot claim on appeal a violation of rights under section 2625 absent objection in the juvenile court].) Nonetheless, to forestall a claim of ineffective assistance of counsel, we exercise our discretion to reach the merits of Father's argument. (People v. Crittenden (1994) 9 Cal.4th 83, 146.)
Here, the record shows Father received notice of the hearing. However, to comply with subdivision (d) of section 2625, Father needed either to be present or to have executed a waiver of his appearance to ensure he actually received the notice. (Jesusa V., supra, 32 Cal.4th at pp. 623-624.) Under the circumstances, it is impossible for either requirement to be satisfied because Father voluntarily absented himself from the proceedings. Although Father informed a social worker in September 2022 that he opposed the petition, the Agency has had no contact with him since that time. In May 2023, the social worker wrote Father a letter but he failed to respond and the letter was not returned to the social worker. His counsel informed the court at trial:
"The father did have notice of this hearing. He is currently incarcerated in George Bailey facility. He has not communicated with my office. My office has tried to initiate contact with him extensively over the last few months. He has not communicated with my office. He was on full notice of this date and time of this trial. We have not been able to even attempt to have him produced, because he won't communicate with my office."
Significantly, section 2625 is triggered by the court receiving "a statement from the prisoner or the prisoner's attorney indicating the prisoner's desire to be present during the court's proceedings." (§ 2625, subd. (d).) The record contains no statement by Father or his counsel indicating Father desired to be present for trial. Father's failure to communicate with his counsel or the social worker undermines any potential claim he desired to be present for trial. In any event, even assuming the court erred by conducting the trial in Father's absence, Father has not shown prejudice.
Family Code section 7822 allows the court to declare a child free from the custody and control of the child's parent if a parent "has left the child in the care and custody of the other parent for a period of one year without any provision for the child's support, or without communication from the parent, with the intent on the part of the parent to abandon the child." (Fam. Code, § 7822, subd. (a)(3).) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.) "[B]eing incarcerated does not, in and of itself, provide a legal defense to abandonment of children." (In re Rose G. (1976) 57 Cal.App.3d 406, 424; In re T.M.R. (1974) 41 Cal.App.3d 694, 699 [finding no abandonment where incarcerated mother wrote to her children twice a month, even though her children were too young to read].)
The failure to provide support or the failure to communicate is presumptive evidence of the intent to abandon. If the parent has made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent. (Fam. Code, § 7822, subd. (b).) In a proceeding under Family Code section 7822, the court is required to "consider the wishes of the child, bearing in mind the age of the child, and . . . act in the best interest of the child." (Fam. Code, § 7890.)
The first element of Family Code section 7822 required evidence showing Father left the children in another person's care and custody for a period of one year. (Fam. Code, § 7822, subd. (a)(3).) Here, there is no dispute the children have resided with the grandparents since 2012 or 2013, a period exceeding one year. On the second element, Father failed to provide any financial support for the children. Additionally, Father has not communicated with them since 2021, when he purchased a gift for K.J. Moreover, neither child wanted to see Father. Evidence of failure to provide support, even when there has been no demand, coupled with a failure to communicate with the child, may be used as evidence of intent to abandon. (In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
Father contends that had he been transported to attend trial, he could have presented evidence showing he did not intend to abandon the children. However, he identified no evidence or argument that he would have presented had he attended trial. Additionally, his failure to communicate with his counsel prevented counsel from offering any evidence on his behalf. Nothing in the record suggests Father could have presented a colorable claim he did not intend to abandon the children. Because Father failed to demonstrate his presence at trial would have changed the outcome, any error under section 2625 was harmless. (Jesusa V., supra, 32 Cal.4th at pp. 624625.)
II. REMAND IS REQUIRED FOR ICWA COMPLIANCE
In proceedings to terminate parental rights resulting in adoption under the Family Code the court must ask each participant whether the participant knows or has reason to know the child is an Indian child and order the parent to complete the ICWA-020 form, which inquires whether the parent does or may have Indian ancestry. (Cal. Rules of Court, rules 5.480(2)(C)(4); 5.481(a)(2) [applies to a "proceeding to declare a child free of the custody and control of one or both parents"].) Once the court is satisfied with the inquiry, the court must make a finding as to whether the child is an Indian child and whether ICWA applies to the proceedings. (Rule 5.481(b)(3).) A court errs if it does not determine whether ICWA applies. (Adoption of M.R. (2022) 84 Cal.App.5th 537, 541; rule 5.481(b)(3).) We examine claims regarding inadequate inquiry into a child's Indian ancestry for substantial evidence. (Adoption of M.R., supra, at p. 542.)
All rule references are to the California Rules of Court.
As the children acknowledge, the ICWA inquiry was deficient because the court never ordered Father to complete the ICWA-020 form and there is nothing in the record showing anyone asked Father whether he knows or has reason to know the children are Indian children. (Rule 5.481(a)(2)(A) &(C).) Accordingly, substantial evidence does not support the court's August 25, 2023, finding that ICWA does not apply.
DISPOSITION
The judgment is conditionally reversed and remanded for the limited purpose of compliance with ICWA, including entry of findings related to ICWA at the conclusion of the inquiry. If, after proper and complete inquiry, the children are found not to be Indian children falling within the provisions of ICWA, the judgment shall be reinstated. However, if a tribe determines the children are Indian children as defined by ICWA and the court determines ICWA applies to this case, the court is ordered to conduct a new trial and proceed in accordance with ICWA. Given the importance of expediency in this matter, we encourage the parties to stipulate to immediate issuance of the remittitur in this case. (Rule 8.272(c)(1).)
WE CONCUR: O'ROURKE, J. KELETY, J.