Opinion
B308976
10-29-2021
In re R.K., a Person Coming Under the Juvenile Law. v. E.K., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Amir Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19LJJP00325A Steven E. Ipson, Judge Pro Tempore. Conditionally reversed and remanded with directions.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Amir Pichvai for Plaintiff and Respondent.
BAKER, ACTING P. J.
E.K. (Father) and M.J. (Mother) are the parents of R.K. (Minor), a one-month-old daughter who tested positive for marijuana at birth. The juvenile court asserted dependency jurisdiction over Minor after the parents did not contest allegations that she was at substantial risk of serious physical harm from their domestic violence and unresolved history of substance abuse, as well as from Mother's mental health issues. At a contested review hearing, the court found Minor's return to Father's care would be detrimental and placed Minor with Mother. Father appeals and asks us to decide whether the juvenile court failed to state the factual basis for its detriment finding and misunderstood the burden of proof that applies when making a finding as to whether the Los Angeles County Department of Children and Family Services (the Department) offered reasonable services to the family. We also determine whether the record before the juvenile court was sufficient to permit a finding that the Department satisfied its obligations under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and related California law.
This was Minor's age when dependency proceedings began.
I. BACKGROUND
A. The Referral and Minor's Detention
In early April 2019, Father and Mother were involved in an automobile accident in Arizona. Mother was pregnant with Minor at the time, and after the accident, Mother followed medical advice to wait to return to California until after Minor was born.
At birth, Minor tested positive for marijuana although Mother tested negative. Minor was briefly detained by Arizona Child Protective Services because of the positive test. One day after Mother and her daughter arrived back in California, the Department received a referral alleging neglect of Minor by her parents.
A Department social worker interviewed both parents. They acknowledged Minor's three siblings had all been the subject of dependency proceedings either in California or Arizona due to prior domestic violence and substance abuse. The parents likewise acknowledged legal responsibility for the three older children had been transferred to relatives due, in part, to the parents' failure to comply with their case plans. Mother reported she used marijuana regularly until she was approximately six weeks pregnant with Minor; thereafter, according to her, she stopped and had not resumed using. Father admitted he used marijuana daily and revealed he and Mother had both used marijuana recently during some "alone time" at a motel while the paternal great grandmother cared for Minor.
B. The Petition, Adjudication, and Disposition
In May 2019 (Minor was five weeks old by then), the Department filed a multi-count petition asking the juvenile court to assume dependency jurisdiction over Minor. At the detention hearing, the juvenile court detained Minor from her parentsand ordered monitored visitation for both Mother and Father.
Over the course of the next several months, both parents submitted to drug testing. Between May and August 2019, Mother was tested nine times and all results were negative. During that same period, Father also tested nine times and two of those tests were positive, one for marijuana and one for phencyclidine (PCP) and alcohol.
In August 2019, the parents agreed to plead no contest to an amended petition alleging dependency jurisdiction existed solely under Welfare and Institutions Code section 300, subdivision (b)(1) (substantial risk of serious physical harm).The amended petition alleged Minor was endangered by her parents' unresolved history of domestic violence and substance abuse, plus Mother's mental health issues.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
After accepting the parents' pleas, the juvenile court removed Minor from her parents' custody and ordered reunification services for both parents over the Department's objection. As part of their respective case plans, Mother and Father were each required to participate in domestic violence, substance abuse, and parenting programs, as well as individual counseling.
C. The Status Review Hearing at Issue in This Appeal
In advance of a scheduled six-month status review hearing, the Department reported on the parents' compliance with their respective case plans. Between August 2019 and January 2020, Mother was tested 21 times and all tests were negative. In addition, Mother attended all of her 12-step relapse prevention meetings and completed her parenting and domestic violence programs. The Department was unable to confirm whether Mother completed her program of individual counseling because Mother did not execute a release of information form.
Father's record of compliance was not as good. Between August 2019 and January 2020, Father tested negative on 15 occasions, but he also tested positive for alcohol use twice and failed to submit to testing four times. Father was unable to provide the Department with confirmation that he enrolled in or completed a parenting class. Father was also dismissed from a domestic violence program due to poor attendance, but he was diligent in attending his individual counseling sessions.
More significantly, the Department reported that in December 2019 the parents got into an argument that escalated into physical violence. Mother reported Father choked her, pushed her to the floor, grabbed her by the hair, and struck her. Father was arrested for the assault, and a Department social worker observed marks on Mother's neck and a bruise under her left eye in the aftermath of it. Mother initially declined to provide a statement to law enforcement and refused an emergency protective order, but three weeks after the incident, she did obtain a restraining order against Father.
After this most recent episode of domestic violence, the Department recommended the juvenile court terminate reunification services for both parents at an upcoming review hearing and calendar a section 366.26 permanency planning hearing. Mother, in the Department's view, had made "a lot of progress," but she had not demonstrated an ability to end her "harmful relationship" with Father. As for Father, the Department concluded "he has neglected to fully participate in the very programs that might be life changing for him. His behavior has not changed and he has not made substantial progress."
The juvenile court continued the anticipated review hearing twice (for COVID-19 reasons). In the meantime, the Department submitted a supplemental status review report that again recommended termination of reunification services for both parents because "family members reported [the parents] were living together, despite the existing restraining order."
The delayed section 366.21, subdivision (e) review hearing went forward in September 2020. The court admitted the Department's reports in evidence and both parents testified.
Father maintained he was no longer in a relationship with Mother and no longer used drugs. He also testified he had completed a parenting course and 15 weeks of domestic violence counseling. Father admitted to pushing Mother during the most recent December 2019 assault (what he referred to as a "tussle"), but he denied hitting or choking Mother or leaving any marks on her body. Father stated he visited Minor "often" and engaged in video chats with her "every day."
Mother testified that although both she and Father currently resided in Arizona they were no longer in a relationship and she had no intention of reuniting with him. Mother stated she ended her relationship with Father after the episode of domestic violence in December 2019 and had not seen him since that incident-except for one unplanned encounter. Although Mother conceded she failed to appear at the hearing on her request for a restraining order due to a misunderstanding about the date of the hearing, she affirmed the factual statements she made in support of her application, including that Father choked and pushed her. Mother testified she was not having in-person visits with Minor because of concerns about COVID-19 but was engaging in hour-long video visits with her daughter three times per week.
After the presentation of evidence and hearing argument from counsel, the juvenile court highlighted what it apparently saw as facts germane to the issue of the parents' fulfillment of their case plans. The court stated Father had a number of "no show" drug tests, as well as positive drug tests; had been dismissed from his domestic violence program; and had not provided proof of enrollment in a parenting program. In some contrast, the court remarked Mother had complied with all elements of her case plan, including consistent drug testing with negative results, completion of a parenting program, and individual counseling. The juvenile court also repeatedly referenced the recent domestic violence incident in December 2019, which it (rather generously) characterized as a "setback" for Father given his participation in domestic violence counseling. The court observed that although Father testified he did not hit Mother in December 2019, his testimony was contradicted by the Department social worker, who personally observed injuries to Mother.
Based on the "totality of the circumstances," the juvenile court concluded continued jurisdiction over Minor was necessary. By a preponderance of the evidence, the court found Minor's return to Father would create a "substantial risk of detriment to the safety, protection, [and] physical and emotional wellbeing of the child" because Father's progress toward alleviating or mitigating the causes necessitating placement had been "minimal." The court also found, on the other hand, that returning Minor to Mother would not present a substantial risk of detriment because her progress had been "substantial." No party objected that the court did not articulate the factual basis for these findings.
The juvenile court ordered Minor returned to Mother's custody, with Father receiving "enhancement services" and the Department being given discretion to liberalize Father's visitation from monitored to unmonitored and, if appropriate, to permit Minor's release into Father's care. In view of its findings, the court did not order a permanent plan hearing pursuant to section 366.26; instead, pursuant to section 364, it ordered a further review hearing to take place in six months.
With regard to whether the Department provided reasonable services to the parents, the transcript of the hearing states the court said the following: "I do believe reasonable services have been provided. The Department has facilitated some visitation, has kept in contact with the parents, has referred, and [provided] information regarding their progress in programs. [¶] . . . [¶] I do not find by clear and convincing, [sic] the Department . . . has complied with the case plan in making reasonable efforts to return the Minor to the safe home [sic] and complete any steps necessary to finalize the permanent plan. Reasonable services have been provided."
During the pendency of this appeal, Father asked this court to judicially notice a minute order concerning proceedings at a June 28, 2021, hearing. We grant the request, but the matter noticed does not affect our resolution of this appeal. The minute order issued for the hearing records the juvenile court's reasonable services finding as follows: "The Court finds the [Department] has complied with the case plan by providing or offering or making reasonable and/or active efforts to provide or offer reasonable services to enable the child's safe return home and to complete and finalize permanent placement of the child."
II. DISCUSSION
Father's contention that the juvenile court "did not specify the factual basis" for its detriment finding against him reads the record too narrowly and, in any event, is forfeited for lack of a contemporaneous objection. Immediately prior to announcing its decision, the court spent considerable time (almost five pages of the reporter's transcript) culling from the record selected facts relevant to a determination of whether the parents had complied with their respective case plans.
Father's assertion that the juvenile court's reasonable services finding is legally infirm because it was not based on clear and convincing evidence is at odds with the plain language of the statute. Section 366.21, subdivision (e) requires a reasonable services finding based on clear and convincing evidence only when the court orders a section 366.26 permanent plan hearing. Because no such hearing was ordered by the court, it was not obligated to make a finding by clear and convincing evidence.
Father's argument that the Department's ICWA compliance was deficient has merit, however, and the Department more or less concedes as much on appeal. The Department did not submit for the juvenile court's review copies of ICWA notices it sent and, so far as the record reveals, there was no evidence from which the juvenile court could find the Department discharged its duty to inquire with known paternal relatives about whether Minor may be an Indian child. We will therefore conditionally reverse the order made by the juvenile court at the review hearing and remand with directions to remedy the ICWA deficiency.
A. Reversal Is Not Warranted for an Asserted Failure to State the Factual Basis for the Detriment Finding
Section 366.21 provides that at the six-month review hearing, the juvenile court, after considering the admissible and relevant evidence, "shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e)(1); see also § 366.21, subd. (f)(1) [same for 12-month review hearing].) The statute further requires the juvenile court to "specify the factual basis for its conclusion that the return would be detrimental or would not be detrimental." (§ 366.21, subd. (e)(2); see also § 366.21, subd. (f)(2) [substantively identical standard for 12-month review hearing].)
Contrary to what Father now contends, the juvenile court did articulate a factual basis for concluding that returning Minor to Father's custody would be detrimental. The court expressly found the December 2019 episode of domestic violence was a "setback" for Father, and we do not believe (as Father asserts) that this was a mere "recitation" of a fact when jurisdiction over Minor was based, in part, on the parents' domestic violence. In addition, the court recounted for the record certain aspects of the parent's testimony and Department reports bearing on why Minor's return to Father's care would be detrimental to her welfare (i.e., his compliance with court-ordered drug testing was inconsistent and sometimes yielded positive results, he was dismissed from domestic violence counseling due to poor attendance, and he did not provide proof of enrollment in a parenting program).
We think this articulation sufficed under the circumstances to satisfy the requirements of section 366.21. Insofar as Father now complains that the juvenile court should have said more than it did, well-settled precedent holds a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been made in the trial court but was not. (In re S.B. (2004) 32 Cal.4th 1287, 1293; accord, In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1346.) "Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources 'to address purported errors which could have been rectified in the trial court had an objection been made.'" (In re S.C. (2006) 138 Cal.App.4th 396, 406.) For the sort of easily remedied procedural claim of error Father advances, invocation of forfeiture principles is particularly appropriate- and we so invoke them.
In an effort to avoid forfeiture, father relies on In re A.C. (2008) 166 Cal.App.4th 146 at page 155. That case, however, which involves a sua sponte, substantive duty to appoint a guardian ad litem, is distinguished from the mere claim of procedural error raised here. Father additionally asserts the juvenile court's detriment finding would be insulated from appellate review if held to be forfeited. Quite right, and so it is with all forfeitures for lack of an objection below.
B. The Juvenile Court Was Not Required to Find by Clear and Convincing Evidence that Reasonable Services Were Provided
Section 366.21 requires a finding by clear and convincing evidence that reasonable services were provided to a parent only when the juvenile court orders a permanent placement hearing pursuant to section 366.26. (§ 366.21, subd. (g)(1)(C)(ii) ["The court shall not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian"]; see also § 366.21, subd. (g)(4) [a section 366.26 hearing may be ordered within 120 days "only if . . . there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians"].) Where a section 366.26 hearing is not ordered at a six month review hearing, the court need only "determine whether reasonable services that were designed to aid the parent or legal guardian in overcoming the problems that led to the initial removal and the continued custody of the child have been provided or offered to the parent or legal guardian." (§ 366.21, subd. (e)(8); see also § 366.21, subd. (f)(1)(A) [substantively identical standard for 12-month review hearing].)
Here, the juvenile court declined to order a section 366.26 hearing. As a result, the court was not under an obligation to find by clear and convincing evidence that reasonable services were provided to Father. (Cf. In re Michael G. (1998) 63 Cal.App.4th 700, 712, fn. 9 ["[The] Department points out that reasonable services must be proven by clear and convincing evidence before a selection and implementation hearing is scheduled at the 6-month or 12-month review stage [citation]"], italics added.) Instead, it was obligated only to make the determination that it made, namely, that a preponderance of the evidence established such services were provided. Though the court's comments-as memorialized in the reporter's transcript- could have been clearer, we are confident the full context of the court's remarks indicate the court made this required finding.
As recounted ante, the transcript indicates the court expressly found reasonable services had been provided and then apparently stated: "I do not find by clear and convincing, [sic] the Department . . . has complied with the case plan in making reasonable efforts to return the Minor to the safe home [sic] and complete any steps necessary to finalize the permanent plan." Immediately after this statement, however, the court again expressly found "[r]easonable services have been provided."
C. The Juvenile Court's Stale ICWA Finding as to Father Finds No Support in the Record
1. Additional background
In advance of the detention hearing, Mother denied any Indian ancestry. Father, however, stated on his ICWA-020 form that his paternal great grandmother may have been a member of the "Blackfoot" Indian tribe.
The Department thereafter investigated Father's possible Indian ancestry and, in June 2019, sent notices to the Blackfeet Tribe of Montana, the Secretary of the Interior, and the Bureau of Indian Affairs (BIA). Although the Department provided proof that these notices were received by the Blackfeet Tribe, the Department of the Interior, and the BIA, copies of the actual notices were not provided to the juvenile court. The record indicates the Department attempted to follow-up with Father on his claims of Indian ancestry by phone, mail, and email-all without success. The Department was also in contact with other paternal relatives during this time, including Minor's paternal grandmother, her paternal great-grandmother, and her paternal aunt, but the Department never advised the court it made ICWA inquiries of any members of Minor's family other than Father.
The Blackfeet Tribe of Montana advised Minor was "not eligible for enrollment" in the tribe.
The juvenile court made a finding at the initial detention hearing that "[ICWA] is not applicable at this time." So far as the record reveals, the court made no further ICWA findings during the ensuing proceedings, including at the delayed section 366.21, subdivision (e) review hearing.
2. Conditional reversal is appropriate
If circumstances, such as the ICWA-020 form, indicate a child may be an Indian child, the Department is obligated "to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status." (In re K.R. (2018) 20 Cal.App.5th 701, 709.)
Here, the juvenile court's implied finding that the Department complied with its inquiry and notice obligations under ICWA and related California law is not supported by substantial evidence. Although the Blackfeet Tribe notified the Department that it did not conclude Minor was eligible for membership in the tribe, it was impossible for the court to determine from that response alone (i.e., without the notice the Department sent) whether the tribe had all necessary information to meaningfully evaluate whether Minor is an Indian child within the meaning of ICWA. (In re Louis S. (2004) 117 Cal.App.4th 622, 629 [holding it was error for the trial court to conclude ICWA did not apply because it had insufficient information to reach that conclusion where the social service agency did not provide it with copies of the ICWA notices].) Without a copy of the notices to the Blackfeet Tribe and the federal government, the juvenile court had no way to know what information the Department included in the notice and, as a result, it lacked adequate information to make a determination that Minor was not an Indian child under ICWA. The Department does not dispute this.
The Department's reports were also inadequate in another respect. Although Father indicated he might have Indian ancestry through his paternal great grandmother, and although the reports showed the Department was in contact with various paternal relatives, including Minor's paternal grandmother, paternal great-grandmother, and paternal aunt, the reports did not document any effort made by the Department to inquire of those relatives (or any other relatives who may have pertinent information) about Minor's possible Indian ancestry. The failure to document such an effort is error too.
DISPOSITION
The juvenile court's September 28, 2020, order is conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of demonstrating full compliance with the inquiry and notice provisions of ICWA and related California law.
On remand, the juvenile court shall permit the Department to submit (1) evidence of any attempt to interview Minor's paternal relatives that may have pertinent information regarding potential Indian ancestry (including the paternal grandmother, paternal great-grandmother, and paternal aunt), and (2) copies of ICWA notices previously sent to tribes and federal government entities. If this additional evidence establishes both that a meaningful effort to inquire about ICWA issues was made and appropriately completed notices were sent, the juvenile court need only make a finding to that effect on the record or in a minute order and then reinstate its section 366.21, subdivision (e) review hearing order. If, however, there is no documentation demonstrating such an inquiry was undertaken by the Department, the juvenile court shall order the Department to conduct such an inquiry and to submit evidence of its efforts. If the Department's inquiry produces additional material information regarding the Minor's potential Indian ancestry, or if the notices the Department previously sent are materially incomplete or incorrect, the juvenile court must order the Department to send corrected notices.
Upon receipt of responses to any further ICWA notice that may be required, the juvenile court shall then determine whether ICWA-related inquiry and notice requirements have been satisfied and whether Minor is an Indian child. If the court finds the Minor is an Indian child, the court shall proceed in compliance with ICWA and related California law.
We concur: MOOR, J. KIM, J.