Opinion
B326707
09-12-2023
In re EMMANUEL J., a Person Coming Under the Juvenile Court Law. v. MANUEL J., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of Los Angeles County No. 20CCJP03995A, Craig S. Barnes, Judge. Affirmed.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, Acting P. J.
Manuel J. (father) appeals from the termination of parental rights over his son, Emmanuel J. (born Jan. 2020). Specifically, father challenges the juvenile court's orders denying his petition to reinstate reunification services (Welf. &Inst. Code, § 388) and his request to continue the permanency planning hearing (§ 366.26), as well as the juvenile court's findings regarding the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). Finding no errors, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
I. Referral and Initial Investigation
In April 2020, the Los Angeles County Department of Children and Family Services (DCFS) received a referral alleging that father and Mayra F. (mother) were neglecting Emmanuel; among other things, mother tested positive for amphetamines when Emmanuel was born. In July 2020, DCFS received another referral alleging that father had punched mother in the face while she was holding Emmanuel. On July 27, 2020, Emmanuel was removed from his parents and placed in the custody of one of his maternal aunts, Claudia P. (maternal aunt).
Early DCFS reports refer to Emmanuel as "Jose." This error was corrected upon discovery of Emmanuel's birth certificate.
II. Dependency Jurisdiction
DCFS filed a petition seeking jurisdiction over Emmanuel under section 300, subdivisions (a) (physical violence) and (b)(1) (failure to protect). As to father, the petition alleged that his physical abuse of mother (counts a-1 and b-1) and failure to protect Emmanuel from mother's substance abuse (counts a-2 and b-2) placed the child at risk of serious harm.
During an interview about mother's alleged substance abuse, father told a social worker, "OK, I'm going to be honest. I used a little" the day Emmanuel was born. When asked for clarification, father said that on "[t]he early morning of [that day, he] used a little meth[amphetamine]." Despite requesting drug testing referrals at a prior hearing, father failed to show to any of the four drug tests that DCFS requested before the jurisdiction hearing.
In September 2020, the juvenile court sustained counts b-1 and b-2. The court granted monitored visitation, and ordered father to complete a domestic violence program, parenting classes, and individual counseling.
III. Reunification Attempts
For most of the first year of reunification services, father made negligible progress towards completing his case plan. He made minimal contacts with social workers, failed to enroll in any court-ordered programs, and, in the year since the court first ordered DCFS to provide him with drug testing services, failed to show for 12 drug tests. On September 25, 2020, he tested positive for amphetamines and methamphetamines; on October 2, 2020, he provided one negative test.
By July 2021, father had enrolled in court ordered services. At the 12-month status review hearing, the juvenile court found that father was making partial progress on his case plan and continued his reunification services. The court advised father that it would be "important . . . for him to redouble his efforts and complete his case plan."
On October 28, 2021, just days after the review hearing, father admitted that he had used methamphetamine "[three] months ago." DCFS requested that he test again; father tested positive for amphetamines and methamphetamines on November 2 and 23, 2021. He later admitted that he "do[es] use sometime when [he] get[s] depress[ed]."
IV. Subsequent Jurisdiction Petition
In January 2022, DCFS filed a subsequent jurisdiction petition (§ 342), alleging that father "has a history of substance abuse . . . and is a current user of amphetamine and methamphetamine which renders . . . [him] incapable of providing regular care and supervision" of Emmanuel, referencing father's recent positive drug tests and Emmanuel's young age.
Father denied the substance abuse allegations. He argued that it would have been impossible for him to have tested positive on November 2, 2021, since he tested shortly after his release from jail that day. With respect to the November 23, 2021 test, father said that he tested positive from "'second hand smoke'" after being in a "'closed room'" with "unknown individuals" smoking methamphetamine.
Father had been arrested a few days prior following another domestic violence incident between himself and mother. Mother passed away shortly after this incident from an unrelated illness.
On March 2, 2022, the juvenile court sustained the subsequent jurisdiction petition, finding that "[f]ather's test results showed that he, in fact, used. His explanation for the positive was not convincing."
Father was scheduled for three more drug tests in March 2022. Two were negative, but father failed to show for the third.
On the date of the no-show appointment, father arrived 10 minutes after the testing facility closed.
V. Termination of Reunification Services and Father's Subsequent Relationship with Emmanuel
In March 2022, the juvenile court held an 18-month status review hearing. It found that father had not made substantial progress towards his case plan and terminated family reunification services.
In September 2022, Emmanuel was diagnosed with autism spectrum disorder. Emmanuel's service provider informed DCFS that three-year-old Emmanuel was developmentally stalled at the level of a one-year-old, and emphasized the importance of a structured, stable environment to support his continued growth. DCFS reported that Emmanuel was well-cared for by maternal aunt.
Father had maintained visitation with Emmanuel throughout these proceedings, with maternal aunt reporting that he visited an average of two days per week for two years. By December 2022, maternal aunt said that father was visiting approximately once per week, and that he would often arrive late to visits. Father contested this, averring that he always visited the child six days a week.
Maternal aunt and father also disagreed about the quality of visits. Father claimed that Emmanuel was always excited to see him and cried when father left; maternal aunt said that Emmanuel was often "indifferent" to visits due to his autism, and reported that father occasionally fell asleep on the sofa and allowed other family members to take the lead during some visits. Maternal aunt's adult daughter, who lived with the family, corroborated her mother's account of father's visits.
VI. Section 388 Petition
After multiple continuances, the permanency planning hearing was set for January 10, 2023. That day, father filed a section 388 petition requesting reinstatement of reunification services.
Two months earlier, the juvenile court summarily denied an earlier section 388 petition, finding that father did not demonstrate changed circumstances.
The petition asserted that father had "completed all or most of [his case plan]," and requested more time to finish his course, attributing his delays to DCFS's failure to timely "point[] out to [father] that the counseling program he had originally signed up for was not DCFS approved[.]" Father also averred that granting the petition would be in Emmanuel's best interests because of his autism diagnosis, because father "never stopped visiting" Emmanuel, and because "w[ith] mother's death, the prior 'risk' conditions" created by father and mother's turbulent relationship "are gone."
Recognizing father's efforts, DCFS initially recommended that the juvenile court grant the petition and reinstate reunification services for 90 days.
On January 10, 2023, the juvenile court decided, "[i]n an abundance of caution . . . to set" father's section 388 petition for "contest" on January 30, the same day as the continued permanency planning hearing.
VII. Last Minute Information (Jan. 27, 2023)
On January 27, 2023, father tested positive for methamphetamine and amphetamine. DCFS withdrew its initial recommendation and instead asked the juvenile court to deny father's section 388 petition and terminate parental rights.
VIII. Denial of Section 388 Petition and Termination of Parental Rights
On January 30, 2023, the case proceeded to a hearing, which father attended. After taking note of DCFS's recommendation to deny the section 388 petition, the juvenile court told father's counsel, "[t]he floor is yours."
Father's counsel appeared surprised that DCFS had changed its position on the petition, stating that he had "expect[ed] to see" DCFS's initial recommendation "and have the court go along with it." Counsel then argued that father's most recent positive drug test should not be accorded much weight, as "one positive test shouldn't keep him from being able to finish what he needs to do to reunify with his child[.]" If the juvenile court denied the section 388 petition, father's counsel alternatively asked for a 90-day continuance of the permanency planning hearing to give father time "to show that he could do what's required of him and to finish up his classes." At no time did father or his counsel ask to present additional evidence.
The juvenile court denied father's section 388 petition, finding that father had not demonstrated a change in circumstances as father "tested positive at a fairly high level for methamphetamines [and] amphetamines" a few days before the hearing, and that any extension of services would not be in Emmanuel's best interests.
The juvenile court also denied father's request for a continuance of the permanency planning hearing, explaining that the request "[was] not properly supported[,]" and that, in any event, "a period of . . . 90 days, does not appear to be sufficient time . . . for father to meaningfully address these issues."
The juvenile court then terminated father's parental rights. Father timely appealed.
DISCUSSION
Father does not argue that the juvenile court erred in terminating his parental rights over Emmanuel. Instead, father attacks the two orders immediately preceding the termination order-namely, the orders denying his section 388 petition and his request to continue the permanency planning hearing- contending that reversible errors in these orders necessitate reversal of the termination order. He also challenges the juvenile court's ICWA findings. We address each of these arguments in turn.
DCFS urges us to dismiss father's appeal because his notice of appeal references only the order terminating parental rights, not either of the orders with which father takes issue. This oversight does not require such a harsh result; in general, appellate courts liberally construe notices of appeal from an order terminating parental rights to encompass the denial of a parent's section 388 petition made within 60 days of when the parent filed the notice of appeal. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451.)
I. Section 388 Petition
A. Applicable Law
Under section 388, subdivision (a)(1), a parent may petition the juvenile court to change, modify, or set aside a previous order in dependency proceedings. "The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child. [Citations.]" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.).)
To satisfy the first prong, "the change in circumstances must be substantial. [Citation.]" (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) Merely changing-as opposed to changed-circumstances will not suffice. (Mickel O., supra, 197 Cal.App.4th at p. 615.)
For the second prong, specifically when determining whether reinstatement of reunification services is in the best interests of the child, the juvenile court must consider whether "the specific factors that required placement outside the parent's home" have been remediated and prioritize "the goal of assuring stability and continuity" for the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464 (Angel B.).) "[A]fter reunification services have terminated, a parent's petition for . . . an order
The juvenile court denied father's section 388 motion and his request for a continuance on the same day that it terminated parental rights, and father filed a notice of appeal the very next day. We therefore construe father's notice of appeal to include the orders denying his section 388 petition and the request for continuance. . . . reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
Because "[a] petition under this section must be liberally construed in favor of its sufficiency[,] . . . if the petition presents any evidence that a hearing would promote the best interests of the child, the [juvenile] court must order [a] hearing." (Angel B., supra, 97 Cal.App.4th at p. 461.)
B. Standard of Review
We review the denial of a section 388 petition for abuse of discretion. (Mickel O., supra, 197 Cal.App.4th at p. 616.) Thus, we must affirm "unless the [juvenile] court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
C. Analysis
Father challenges what he characterizes as the juvenile court's improper summary denial of his section 388 petition, contending that by failing to give him "a full hearing . . . at which he could put on evidence," the juvenile court "denied [him] the protections of the statutory scheme . . . designed to give a rehabilitated parent such as he a fair chance to preserve his parental rights."
The premise of this argument is fundamentally incorrect. The juvenile court did not summarily deny father's section 388 petition; it set the petition for a contested hearing, placed no limits on father's ability to call witnesses or submit evidence, and issued a ruling only after hearing argument from father's counsel.
Father argues that the juvenile court did not afford him a "full hearing" because it failed to specifically "request that [father's counsel] begin the presentation of documentary or testimonial evidence," but he cites no authority obligating the juvenile court to make such solicitations of parents represented by counsel. (Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956 ["'The absence of . . . citation to authority allows this court to treat the contention as waived.' [Citations.]"].)
Nor does the record indicate that, if asked, father's counsel would have presented additional evidence; despite multiple invitations from the juvenile court to "be heard[,]" father's counsel did not make any proffer of evidence. Indeed, given counsel's stated expectation that the juvenile court would "go along with" DCFS's initial recommendation to grant the petition, it is likely that father's counsel had not prepared the hypothetical evidence that father now insists he should have been prompted to present.
On appeal, father speculates that he could have presented "testimony that [(1)] he had in fact visited [Emmanuel] more frequently than [maternal aunt] reported, [(2)] that he had in fact learned from . . . and internalized the lessons taught in [his] services, and [(3)] that his positive drug test . . . was not an indication of settled drug use." Assuming arguendo that the juvenile court denied father the opportunity to present evidence, we note that it is not "reasonably probable" that this testimony, which duplicates statements offered in the petition and arguments father's counsel made at the hearing, would have led to a different result. (In re Alayah J. (2017) 9 Cal.App.5th 469, 481 [reversal is warranted "'only if the reviewing court finds it reasonably probable [that] the result would have been more favorable to the appealing party but for the error'"].)
Finally, even if the juvenile court had summarily denied the section 388 petition, it would have been justified in doing so. Father filed an 11th-hour petition on the day of the original permanency planning hearing, alleging only that he continued to participate in services and visit Emmanuel. The petition failed to state either changed circumstances or "facts that showed that [Emmanuel's] best interests might be promoted by the proposed change of order," particularly given father's recent positive drug test. (Angel B., supra, 97 Cal.App.4th at pp. 463, 464-465 [even a petition alleging that a parent "remained sober, completed various classes . . . and visited regularly with" a child is "not legally sufficient to require a hearing"].)
II. Request to Continue Permanency Planning Hearing
A. Applicable Law and Standard of Review
The juvenile court may grant a continuance of any dependency hearing on a showing of good cause, unless the continuance would be contrary to the minor's interest. (§ 352, subd. (a).) In deciding whether to grant a request for a continuance, the juvenile court "shall give substantial weight to a [child]'s need for prompt resolution of his . . . custody status, the need to provide children with stable environments, and the damage to a [child] of prolonged temporary placements." (Ibid.) Particularly at the permanency planning stage, time is of the essence in accomplishing the statutory goal of providing stability and permanence for dependent children; continuances are generally discouraged. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
An order denying a request for continuance is reviewed for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
B. Analysis
We find no abuse of discretion in the denial of the continuance in this case. At the time of father's request, Emmanuel had been removed from parental custody for roughly two and a half years, since he was six months old. For the entirety of that period, Emmanuel had been placed with the prospective adoptive parent, his maternal aunt. The permanency planning hearing had already been continued multiple times, including once to accommodate a hearing on father's last-minute section 388 petition. Father had been given 18 months of reunification services and still could not demonstrate consistent sobriety. And, given his significant developmental disability, Emmanuel's need for structure and stability is particularly acute and urgent. Considering the factors set out in section 352, subdivision (a), a further continuance would have been contrary to Emmanuel's interests.
Father argues that he should have been granted a continuance "to show that he could do what's required of him" and be given one more chance to reunify with his son. In essence, this argument amounts to a repetition of his section 388 petition, which sought a reinstatement and continuation of reunification services. As outlined above, that petition was properly denied.
Additionally, father contends that the record does not support the juvenile court's conclusion that a continuance of 90 days would not be sufficient for father to meaningfully address his substance abuse issues. This contention is meritless for two reasons. First, it is incorrect; the record amply supports the juvenile court's conclusion. Father tested positive for methamphetamines and amphetamines three days before the permanency planning hearing. And this was not father's first relapse; earlier in these proceedings, he tested positive just days after the juvenile court extended reunification services and advised that it would be "important . . . for [father] to redouble his efforts" to regain custody of Emmanuel. Father admitted that he was prone to using methamphetamine when he felt depressed; he consistently failed to show up for scheduled drug testing throughout these proceedings; and he did not take responsibility for his positive drug tests. On this record, it strains credulity to assert that father could ameliorate his substance abuse issues in just 90 days.
Second, regardless of father's ability to cure the substance abuse problems necessitating Emmanuel's removal, the juvenile court could not have granted a continuance, since, per the mandatory factors provided in section 352, subdivision (a), it would have been contrary to Emmanuel's interests to draw out these proceedings any further. (Cf. In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["Childhood does not wait for the parent to become adequate"].)
III. ICWA
A. Relevant Facts
Father consistently denied Indian ancestry. In August 2020, father filed a Parental Notification of Indian Status (ICWA-020) form indicating that he had no known Indian heritage. Mother also denied any Indian ancestry. In January 2023, maternal aunt denied any Indian heritage through mother's side of the family. DCFS does not appear to have asked any other extended family members about potential Indian ancestry.
At the January 30, 2023 permanency planning hearing, the juvenile court found that "[i]t has no reason to believe ICWA applies."
B. Applicable Law
"ICWA was enacted to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement' [citation], and 'to promote the stability and security of Indian tribes and families by establishing . . . standards that a state court . . . must follow before removing an Indian child from his or her family' [citations]." (In re Dezi C. (2022) 79 Cal.App.5th 769, 780, review granted Sept. 21, 2022, S275578 (Dezi C.).)
Under California law enacted to implement ICWA, DCFS and the juvenile court have "three distinct duties . . . in dependency proceedings." (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) The first is the initial duty of inquiry, which DCFS "discharges . . . chiefly by 'asking' family members 'whether the child is, or may be, an Indian child.' ([§ 224.2], subd. (b).)" (Dezi C., supra, 79 Cal.App.5th at p. 780.) "This includes inquiring of not only the child's parents, but also others, including but not limited to, 'extended family members.' For its part, the juvenile court is required, '[a]t the first appearance' in a dependency case, to 'ask each participant' 'present' 'whether the participant knows or has reason to know that the child is an Indian child.' ([§ 224.2,] subd. (c).)" (Dezi C., supra, at p. 780; see also Cal. Rules of Court, rule 5.481(a)(1)-(2).) The second duty- the duty of further inquiry-is triggered if there is "reason to believe that an Indian child is involved" (§ 224.2, subd. (e)), while the third duty-to notify the relevant tribes-is triggered if there is "reason to know . . . that an Indian child is involved" (§ 224.3, subd. (a)).
Over the past few years, the appellate courts have created "a continuum of tests for prejudice stemming from error in following California statutes implementing ICWA." (In re A.C. (2022) 75 Cal.App.5th 1009, 1011; see also Dezi C., supra, 79 Cal.App.5th at pp. 777-778.) Our Division has adopted the following rule: "[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding. For this purpose, the 'record' includes both the record of proceedings in the juvenile court and any proffer the appealing parent makes on appeal." (Dezi C., supra, at p. 779.)
C. Standard of Review
"We review claims of inadequate inquiry into a child's Indian ancestry for substantial evidence. [Citation.]" (In re H.V. (2022) 75 Cal.App.5th 433, 438.) "Where, as here, there is no doubt that [DCFS]'s inquiry was erroneous, our examination as to whether substantial evidence supports the juvenile court's ICWA finding ends up turning on whether that error by [DCFS] was harmless-in other words, we must assess whether it is reasonably probable that the juvenile court would have made the same ICWA finding had the inquiry been done properly." (Dezi C., supra, 79 Cal.App.5th at p. 777.)
D. Analysis
Father argues that DCFS violated the initial duty of inquiry by failing to interview four available extended family members-namely two of mother's siblings, a paternal grandmother, and a paternal grandfather-about potential Indian ancestry. DCFS concedes that they did not interview any of these family members, but argues that these omissions do not constitute reversible error.
We agree with DCFS. Any ICWA error relating to the maternal relatives is presumably harmless, as Emmanuel has not been separated from his maternal family. (See Dezi C., supra, 79 Cal.App.5th at p. 780 [ICWA's purpose is "to curtail 'the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement'"]; see also In re S.S. (2023) 90 Cal.App.5th 694, 716-717 (dis. opn. of Stratton, P. J.) [no reversible ICWA error where the child "is in no danger of being separated from his biological family, the evil ICWA was enacted to prevent"]; accord, In re Alexis H. (2005) 132 Cal.App.4th 11, 16 [noncompliance with ICWA duties regarding maternal relatives is harmless where the children remained in mother's custody].)
Moreover, applying the "'reason to believe' rule" that we adopted in Dezi C., supra, 79 Cal.App.5th at page 779, we conclude that the juvenile court and DCFS's failure to make the requisite inquiries of these four family members was harmless because the record does not suggest a reason to believe that Emmanuel is an Indian child within the meaning of ICWA.
Father encourages us to set aside the "reason to believe" rule and to instead adopt one of the more stringent prejudice tests promulgated by our colleagues in other divisions. For the reasons set forth in Dezi C., supra, 79 Cal.App.5th at pages 782786, we decline to do so.
Both parents repeatedly denied any known Indian ancestry, and nothing in the record suggests that either parent was adopted such that "their self-reporting of 'no heritage' may not be fully informed [citation]." (Dezi C., supra, 79 Cal.App.5th at p. 779; cf. In re Y.W. (2021) 70 Cal.App.5th 542, 554 [a parent's denial of Indian heritage was unreliable because she was adopted and had no contact with her biological parents].) Father also makes no proffer on appeal that he or mother have any Indian heritage. (See Dezi C., supra, at pp. 779, fn. 4, 786.)
Our analysis is underscored by ICWA itself, which narrowly defines "Indian child" to include only a child who is herself or whose parent is a current member of a federally recognized Indian tribe. (§ 224.1, subd. (b).) We doubt that the extended relatives, if asked, would have been able to provide any different information about whether Emmanuel or his parents were tribal members-particularly absent any contrary suggestion from father. (See In re A.C., supra, 75 Cal.App.5th at p. 1023 (dis. opn. of Crandall, J.) ["Because such basic information is often known or easily discoverable by each respective parent, there is limited utility in remanding such matters for 'extended family member' inquiry"].)
DISPOSITION
The findings and orders are affirmed.
We concur: CHAVEZ, J., HOFFSTADT, J.