Opinion
B298838
04-20-2020
In re D.R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LINDSAY M., Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP04737) APPEAL from an order of the Superior Court of Los Angeles County, Steff Padilla, Juvenile Court Referee. Affirmed. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
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Lindsay M. (Mother) appeals from the juvenile court's jurisdictional findings and dispositional order declaring then nine-year-old D.R. and twin eight-year-olds Zoe R. and N.R. dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), removing the children from her custody and placing them with the maternal uncle. On appeal, Mother's sole contention is that the Los Angeles County Department of Children and Family Services (the Department) and the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) because the Department sent the ICWA notices for the continued jurisdiction and disposition hearing by certified mail to the wrong address. We conclude the failure to mail the notices to the correct address was not prejudicial error because the Department e-mailed the ICWA notices to the tribal representative, the tribe intervened, the tribal representative appeared at the subsequent review hearing and received notice of the permanency planning hearing scheduled for May 2020, and at no time did the tribe object to the lack of prior notice. We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition and Detention
On June 29, 2018 Mother called maternal uncle E.M. and told him that she and her children—then eight-year-old D.R. and seven-year-olds Zoe R. and N.R.—were on their way to California from the State of Washington and would arrive on July 1. E.M. agreed the children could stay with him and his family for a week in North Hollywood. However, Mother had no contact with the children for three weeks after leaving them with E.M., except for a brief phone conversation on July 3. E.M. and his girlfriend, Esmeralda M., called Mother daily but were unable to contact her. On prior occasions Mother would leave the children with a friend or E.M. for several days at a time. When E.M. and Esmeralda previously lived in Washington, "the children practically lived at their home during school holidays and vacations." E.M. and Esmeralda reported Mother used methamphetamine, and Esmeralda believed Mother's drug use had worsened since the children's father passed away. According to E.M., Mother had pending charges in Washington for drug-related offenses and forgery, and the children had a prior dependency case in Washington.
Esmeralda reported that when the children arrived in July, they were malnourished, covered in flea bites, and had not visited their doctors in years. Before residing with E.M. and his family, the children had lived with Mother and her boyfriend Dre in Washington. The children were afraid of Dre because he used drugs, had a gun, and called Mother derogatory names. E.M. and Esmeralda were willing to care for the children long term, and the children bonded well with them.
On July 30, 2018 the Department filed a section 300 petition on behalf of D.R., Zoe R., and N.R. The petition stated Mother's whereabouts was unknown, and D.R., Sr. (Father), was deceased. The petition alleged on July 1, 2018 and prior occasions, Mother left the children with maternal uncle E.M. without making an appropriate plan for the children's ongoing care and supervision (count b-1). The petition further alleged Mother had a history of substance abuse including methamphetamine, and her use of methamphetamine rendered her incapable of providing regular care of the children (count b-2). The petition noted the children "may have Indian ancestry."
Mother did not appear at the July 31, 2018 detention hearing, and her whereabouts remained unknown. The juvenile court ordered the Department to conduct "a due diligence search" for Mother. Further, the court ordered the Department to address "[a]ny other relevant information/update regarding the UCCJEA issue." The court detained the children and ordered them to remain with E.M. and Esmeralda pending the next hearing. The court designated E.M. and Esmeralda as co-holders of the educational and developmental rights for the children. B. The Jurisdiction and Disposition Report
Judge Natalie Stone presided over the proceedings until the case was transferred to the ICWA court after the October 4, 2018 hearing.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; Fam. Code, § 3400 et seq.) "is the exclusive method for determining subject matter jurisdiction for child custody proceedings in California, including child dependency proceedings." (In re C.W. (2019) 33 Cal.App.5th 835, 859; accord In re E.R. (2018) 28 Cal.App.5th 74, 79; see Fam. Code, § 3421, subd. (b).) "The UCCJEA is designed to avoid jurisdictional conflicts between states and relitigation of custody decisions, promote cooperation between states, and facilitate enforcement of another state's custody decrees." (In re R.L. (2016) 4 Cal.App.5th 125, 136; accord, In re Cristian I. (2014) 224 Cal.App.4th 1088, 1099.) Here, the juvenile court contacted the appropriate Washington court, which on October 4, 2018 declined jurisdiction under the UCCJEA.
The September 10, 2018 jurisdiction and disposition report stated Mother's whereabouts remained unknown. E.M. reported he had no contact information for Mother because she called from different cell phone numbers. According to the children, when Mother dropped them off at E.M.'s home, Mother told them she would come back to pick them up. The children denied Mother used drugs but said Dre used drugs and alcohol. E.M. reported Mother was homeless and had been using methamphetamine.
The children thrived in E.M. and Esmeralda's care and got along well with their cousins. They referred to E.M. as "dad" and Esmeralda as "mom." The children were comfortable in E.M.'s home because they had previously spent a lot of time in his care. E.M. reported he had requested individualized education programs for Zoe and N.R. because they were in second grade but could not read and were academically behind. E.M. stated the children had missed 70 percent of school time while they were in Mother's care. C. Progress Reports and Hearings
On September 19, 2018 the juvenile court ordered the Department to provide ICWA notice to the Central Council of Tlingit and Haida Indian Tribes. Mother's whereabouts remained unknown. The court ordered the Department to provide a due diligence report by September 25. In response, the social worker reported she spoke with Jeannette Ness "from the Petersberg Indian Association (Tlingit and Haida Tribe[s]) who stated that she will be filing an intervention as ICWA does apply to this family." At the September 25, 2018 hearing, the court ordered, "Tribal representative Jeanette Ness to be noticed for all future hearings." The court continued the matter to October 4 for a progress report on ICWA.
On September 25, 2018 the Department sent an ICWA notice for only N.R. to "Jeanette Ness [¶] P.O. Box 1410 [¶] Petersberg, AK 99833." On October 3, 2018 the social worker spoke with Ness by telephone and e-mailed her the ICWA notices. Ness stated she was available to participate in the upcoming October 4 hearing by telephone.
In the October 4, 2018 last minute information for the court, the social worker reported the family had an extensive dependency history in Washington due to the parents' substance abuse and Father's domestic violence against Mother. The Washington dependency records indicated the Central Council of Tlingit and Haida Indian Tribes was a party to the prior Washington dependency case.
As of the October 4, 2018 hearing, Mother's whereabouts remained unknown. Ness appeared by telephone and reported her tribe wished to intervene in the case. She stated the children were descendants of an enrolled member and eligible to enroll in the tribe. Ness also informed the juvenile court she received an ICWA notice only for N.R. The court directed the Department to provide ICWA notices to Ness for all three children for the December 10, 2018 jurisdiction and disposition hearing. The court also informed Ness the case would be transferred to the designated ICWA court and provided her with that court's direct telephone number. D. The Tribe's Intervention
The court set the jurisdiction and disposition hearing for December 10, 2018 to accommodate Ness's schedule.
On October 17, 2018 Ness filed a notice of intervention on behalf of the Native Village of the Petersburg Indian Association, a federally recognized tribe, as its tribal representative. The tribe requested "all further documents, pleadings and notices" be provided to Ness at "P.O. Box 1418 [¶] Petersburg, Alaska 99833." The notice of intervention also provided Ness's work phone number, fax number, and e-mail address. The juvenile court granted the tribe's request for intervention and acknowledged the tribe was "a party to this case with an equal right to notice and to participate in all proceedings." E. Continuance of Jurisdiction and Disposition Hearing
On November 21, 2018 Ness notified the social worker she would not be able to appear by telephone at the December 10, 2018 jurisdiction and disposition hearing because she would be on vacation. At the December 10 hearing, the court found ICWA applied and the children's placement with E.M. was "an [ICWA] compliant placement." The court continued the jurisdiction and disposition hearing to February 5, 2019.
On January 24, 2019 the social worker located Mother, who was in an inpatient drug treatment facility in Spokane Valley, Washington. Mother stated she was ordered by the criminal court to enroll in the program in lieu of a prison term. Mother brought the children to E.M.'s house because she did not want the children to "go to the system." She admitted to using methamphetamine "on and off" since she was 15 years old. Mother stated she "tried not to be under the influence" around the children while they were in her care.
On January 28, 2019 the social worker received an e-mail from Ness stating as to the February 5, 2019 hearing, "Thank you for the notice on the . . . children. I will be traveling that day and will not be able to call in to the hearing. [¶] Please keep me updated on how the hearing went."
At the February 5, 2019 hearing, the juvenile court appointed counsel for Mother. The matter was continued several times for the Department to find a qualified expert witness to opine on the impact of placement of the children with E.M and whether the Department was making active efforts to provide remedial services and rehabilitative programs to prevent breakup of the children's Indian family. F. ICWA Notice of Hearing and Expert Declaration
On May 3, 2019 the social worker sent notices of the May 20, 2019 jurisdiction and disposition hearing to Ness by certified mail to "P.O. Box 1410 [¶] Petersburg, AK 99833" (instead of P.O. Box 1418). In addition, the social worker e-mailed Ness copies of the hearing notices on May 3. On May 10 the social worker e-mailed Ness a copy of the declaration of qualified expert Richard England.
The social worker's e-mail with the notices is not in the record. However, the May 17, 2019 last minute information for the court states the notices were e-mailed to Ness, and Mother does not dispute this fact on appeal.
On May 17, 2019 the social worker filed England's expert declaration with the juvenile court. England stated in his declaration, "The children were essentially abandoned at their uncle's house by their mother and she has not returned or communicated with the family regarding a plan to resume care of them." England opined, "The uncle has stepped up and been an exceptional care provider for his nephew and nieces since their mother left them in his care. The uncle is giving the children what they need and providing them with a stable, safe, nurturing and loving home." England stated although E.M. was not enrolled in the tribe, the children's maternal grandmother (E.M.'s mother) was an enrolled member. E.M. believed the children could be enrolled in the tribe, and he wanted to get the children registered.
England concluded, "Based upon my review of the matter, it is my opinion that active efforts are being made to provide remedial services and rehabilitative programs that [are] designed to prevent the break-up of the Indian family. In addition, it is my opinion that there have been affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite the Indian children with their family." England further opined "the children's current ICWA preferred placement is the most appropriate" placement. He stated, "This placement is providing the children with an opportunity to stay with family even though they are not currently living with their mother." England added, "The children have extended family to care for them and this is reflective of Tribal traditions and the Tribal child rearing practices." G. Jurisdiction and Disposition Hearing
At the May 20, 2019 jurisdiction and disposition hearing, the juvenile court found "notice of [the] proceedings ha[d] been given as required by law." Neither Mother nor Ness appeared at the hearing. England appeared by telephone, but the court excused him because the parties did not want to examine him. The court found ICWA applied and the Department had made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family. The court dismissed count b-1 but found count b-2 to be true by a preponderance of the evidence.
The juvenile court declared the children dependents of the court under section 300, subdivision (b)(1). Over Mother's objection, the court removed the children from Mother's physical custody pursuant to section 361, subdivision (c). The court ordered the Department to provide Mother with family reunification services. The court ordered Mother to participate in a full drug and alcohol program, random or on-demand weekly testing, a 12-step program with a court card and sponsor, parenting classes, and individual counseling to address case issues. The court granted Mother two monitored visits a week for three hours each with the Department having discretion to liberalize visitation.
Mother's notice of appeal is from the May 20, 2018 jurisdictional findings and dispositional order, but in her opening brief Mother only argues the dispositional order should be reversed.
On January 14, 2020 tribal representative Kara Wessbaum appeared at the six-month review hearing (§ 366.21, subd. (e)). At the hearing, the juvenile court terminated Mother's family reunification services and set the permanency planning hearing for May 12, 2020 (§ 366.26).
On February 14, 2020 we granted the Department's request for judicial notice of the January 15, 2020 minute orders. (Evid. Code, § 452, subd. (d).) Consideration of postjudgment evidence is appropriate when it is not considered to challenge the juvenile court's determination based on later developments, but for another limited purpose. (In re A.B. (2008) 164 Cal.App.4th 832, 836 [augmentation of record to consider document filed by mother in other dependency case in which she denied Indian heritage was proper to show lack of inquiry into mother's Indian status was harmless error]; In re Marina S. (2005) 132 Cal.App.4th 158, 166 [taking judicial notice of postjudgment minute order stating home study of adoptive parents was approved by the juvenile court following the termination of parental rights]; cf. In re Josiah Z. (2005) 36 Cal.4th 664, 676 ["an appellate court should not consider postjudgment evidence going to the merits of an appeal and introduced for the purposes of attacking the trial court[']s judgment"].)
DISCUSSION
A. ICWA Notice Requirements
ICWA provides as to dependency proceedings, "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe . . . ." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re Elizabeth M. (2018) 19 Cal.App.5th 768, 784.)
California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (§ 224.3, subd. (a); see In re Elizabeth M., supra, 19 Cal.App.5th at p. 784; In re Breanna S. (2017) 8 Cal.App.5th 636, 649; Cal. Rules of Court, rule 5.481(c)(1) [notice required "[i]f it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480," including dependency cases filed under § 300].) "Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement . . . ." (§ 224.3, subd. (b).) "Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing . . . ." (Id., subd. (c).) "A proceeding shall not be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs . . . ." (Id., subd. (d).)
"Before the court can place an Indian child in foster care or terminate parental rights, it must find 'that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.' (25 U.S.C. § 1912(d).) A foster care placement also requires a finding, by clear and convincing evidence, based on testimony from 'qualified expert witnesses,' that 'continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child.' (25 U.S.C. § 1912(e).)" (In re W.B. (2012) 55 Cal.4th 30, 49; see Welf. & Inst. Code, § 361.7.) B. The Department's Error in Mailing the ICWA Notices to the Wrong Address Was Not Prejudicial Because the Tribe Received Actual Notice and Appeared at the Subsequent Review Hearing
Mother contends the Department's mailing of the notices for the May 20, 2019 jurisdiction and disposition hearing to the tribe at the wrong address was prejudicial error. The Department argues the error was not prejudicial because the tribe received actual notice of the hearing and appeared at the subsequent review hearing. The Department has the better argument.
"Sending an ICWA notice to the wrong address is error, and the error is prejudicial when . . . the record lacks conclusive evidence the tribe received actual notice." (In re Mary G. (2007) 151 Cal.App.4th 184, 211; accord, Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.) "In evaluating the harmless error argument, it is essential to distinguish between violation of notice requirements imposed by ICWA itself and the federal regulations implementing it, on the one hand, and violations of state standards for inquiry and notice that are higher than those mandated by ICWA, on the other hand. As to the former, 'ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error.' [Citations.] Any failure to comply with a higher state standard, however, 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (In re Breanna S., supra, 8 Cal.App.5th at p. 653, fn. omitted; accord, In re E.H. (2018) 26 Cal.App.5th 1058, 1072.)
Although "'ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error'" (In re Breanna S., supra, 8 Cal.App.5th at p. 653), in this case it is not. While the Department mailed the notices of the jurisdiction and disposition hearing to the wrong address, Mother does not dispute the social worker e-mailed the notices to Ness on May 3, 2019, then e-mailed a copy of England's expert declaration to Ness on May 10. During the course of the proceedings, the social worker and Ness communicated by e-mail about the case, including Ness's January 28, 2019 e-mail to the social worker in which Ness stated she was not going to appear at the initially scheduled February 5, 2019 jurisdiction and disposition hearing and requested she be updated on how the hearing went. Further, tribal representative Wessbaum later appeared at the January 14, 2020 six-month review hearing, at which she did not raise an objection that the tribe had not received proper notice of the jurisdiction and disposition hearing or was denied an opportunity to attend the hearing. The tribe also received notice of this appeal but has not appeared or joined Mother's request for reversal based on noncompliance with ICWA.
Moreover, at the January 14, 2020 hearing the juvenile court set the May 12, 2020 permanency planning hearing, so the tribe will have an opportunity to appear at the final hearing before a permanent plan for the children is adopted. As we explained in In re Breanna S., supra, 8 Cal.App.5th at page 653, "[V]igilance in ensuring strict compliance with federal ICWA notice requirements is necessary because a violation renders the dependency proceedings, including an adoption following termination of parental rights, vulnerable to collateral attack if the dependent child is, in fact, an Indian child." Here, the tribe had notice of the proceedings, intervened, had actual notice of the jurisdiction and disposition hearing, appeared at the six-month review hearing, and received notice of the permanency planning hearing. Under these circumstances, the failure to mail the notices of the jurisdiction and disposition hearing to the correct address was not prejudicial error.
DISPOSITION
The jurisdictional order and dispositional findings are affirmed.
FEUER, J. We concur:
PERLUSS, P. J.
ZELON, J.