Opinion
A130548
12-28-2011
In re M.Z., a Person Coming Under the Juvenile Court Law. NAPA COUNTY HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. M.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. JV13074, JV13075, JV13077)
M.C. appeals from numerous orders issued in these proceedings instituted under Welfare and Institutions Code section 300. She contends: the juvenile court erred in refusing to file her section 388 petition at the section 366.26 hearing, and in denying her request for a continuance of the section 366.26 hearing so she could file it; the court's termination of her parental rights should be reversed because the court failed to inquire properly as to the children's father's Indian ancestry; and a restraining order issued against appellant was not supported by substantial evidence. We will affirm the orders.
Except where otherwise indicated, all statutory references herein are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
Appellant M.C. is the mother of Angelica, Anabel, and Marilyn, who have been the subject of two dependencies, one in 1998-2002 and one that commenced in 2010. Since 2002, the children have lived with the prospective adoptive family, Teresa Z. and Gabriel C., while appellant and their father, Gustavo C., have been incarcerated.
A. Appellant's Conviction and the Initial Guardianship
In 1998, while caring for the children, appellant worked at a restaurant owned by Mr. and Mrs. K. After Mr. K disappeared, Mrs. K admitted to police that she had "talked to [appellant] about getting rid of her husband and [appellant] advised her that for $10,000 or $15,000 someone could 'take care of her husband for her." Appellant's husband Gustavo C. thereafter maintained that he shot Mr. K. in the head and buried his body, and he demanded that Mrs. K pay him $20,000 or he would kill her and her children. Mrs. K paid Gustavo $20,000 and an additional $25,000 a few months later. When questioned by police, appellant admitted that she told Mrs. K her husband Gustavo knew of some people who would "take care of Mr. K.
Appellant and Gustavo C. were arrested for the murder of Mr. K in 2000. At that time, appellant left her daughters in the care of her sister Teresa and Teresa's husband Gabriel. It is undisputed that Teresa has always had a strong bond with the minors and has helped care for them since the oldest child was a baby.
Appellant and Gustavo C. were released from custody and then rearrested in connection with Mr. K's murder in July 2001. This time, appellant left the girls with another sister, Patricia.
On February 15, 2002, respondent Napa County Department of Health and Human Services (Department) took Angelica, Anabel and Marilyn into protective custody after learning that Patricia struck the children on multiple occasions.
Later in February 2002, the Department filed dependency petitions with respect to the children pursuant to provisions of section 300, alleging Patricia's conduct and the incarceration of appellant and Gustavo C. The girls were returned to the care of Teresa and Gabriel in March 2002.
At the jurisdictional hearing in March 2002, the court sustained the petitions as to all three children.
As of the April 2002 dispositional hearing, appellant and Gustavo C. were still in custody, awaiting resolution of the charges against them. The Department proposed that, if both parents were willing to waive reunification services, the juvenile court should order a plan of guardianship for all three minors with Teresa and Gabriel pursuant to section 360. In May 2002, appellant and Gustavo waived reunification services, and the juvenile court declared the minors to be dependent children and established the proposed guardianships. Letters of guardianship were issued on June 19, 2002. The minors were "overjoyed" to be placed with their aunt and uncle.
At the time of the six month review in December 2002, appellant and Gustavo C. remained incarcerated. All three minors were doing well in their guardianships. The court dismissed the dependency but retained jurisdiction over the minors in connection with the guardianships. (§ 366.4.)
Appellant and Gustavo C. were ultimately convicted. Gustavo is serving a life sentence. Appellant was given a 10-year sentence with a projected release date in November 2010.
B. The Current Proceedings
In July 2010, over nine years after the letters of guardianship issued and a few months before appellant's scheduled release from prison, the Department filed a petition pursuant to sections 388 and 366.3, subdivision (c), asking the juvenile court to reestablish dependency jurisdiction over the minors so that the court could consider changing their permanent plans from guardianship to adoption.
According to the petition, the three girls had been residing with Teresa and Gabriel for the previous eight years, considered them to be their parents, and "expressed a strong desire to be adopted by their guardians." Both guardians stated they would like to adopt the minors.
On July 29, 2010, the juvenile court resumed dependency jurisdiction over the three girls and set the matter for a section 366.26 hearing to explore the appropriateness of this change to their permanent plans.
On August 17, 2010, appellant received notice by personal service that the section 366.26 hearing was scheduled for November 4, 2010, and the social worker was recommending termination of her parental rights.
1. The Section 366.26 Report
The Department's report for the section 366.26 hearing advised that Teresa and Gabriel "have provided consistency, stability and a loving and nurturing home" and all three girls appeared to be "benefitting greatly" from their placement. The girls were well-adjusted, they were medically, developmentally and educationally on track, and they were polite, friendly, and participating in school activities. Teresa and Gabriel had been cleared as an appropriate relative placement, had demonstrated their ability to meet the minors' needs for over eight years, and were committed to adopting the girls. The children were integrated into the family and enjoyed equal standing with two birth children, who believed that the girls were their sisters rather than their cousins. All family members reportedly maintained caring and loving relationships.
The decision to seek adoption was triggered by Teresa's and Gabriel's attempts to prepare the girls for appellant's release from prison. It became apparent that the girls and their guardians "would be devastated if their family were to break up." The three minors consistently indicated their desire to be adopted by Teresa and Gabriel, whom they consider to be "mom and dad."
The children had not seen either of their biological parents in "recent years." They had had no contact with Gustavo since around 2003, when he sent threatening letters to their guardians. Their last visit with appellant was about two years before the section 366.26 hearing. Phone calls were "tried for a period of time, but discontinued when [appellant] abused the privilege by making frequent collect phone calls to the family home and running up excessive charges which the family could not afford."
At the time set for the section 366.26 hearing, all three girls requested that they not have any further contact with appellant and Gustavo C. The state adoptions worker testified that the minors do not feel comfortable with either appellant or Gustavo. The state adoptions worker further opined that Teresa and Gabriel were suitable for the adoption and committed to it, and that removal of the minors from their care would be "seriously detrimental to the children's well being."
2. Appellant's Request to File a Section 388 Petition at the Hearing
At the commencement of the section 366.26 hearing on November 4, 2010, appellant's attorney advised the juvenile court that appellant objected to the termination of her parental rights. Counsel also represented that appellant had signed and wanted to file a "JV180" petition for modification pursuant to section 388, by which she would seek rescission of the minors' guardianships, the return of the children to her care, and reunification services. The court declined to permit the filing of the petition, on the ground it had not been filed before the section 366.26 hearing and was thus untimely. The court also denied appellant's request for a continuance of the section 366.26 hearing so the petition could be filed. The matter was set for a contested section 366.26 hearing.
3. Contested Section 366.26 Hearing and Juvenile Court's Orders
At the contested section 366.26 hearing on November 18, 2010, the Department and the state adoptions worker recommended that appellant's parental rights be terminated and that adoption be selected as the appropriate permanent plan for Angelica and Anabel.
Because Marilyn was turning 18 on the date set for the section 366.26 hearing and planned on pursuing an adult adoption through the superior court, termination of parental rights was not necessary in her case.
Appellant's attorney argued that appellant's parental rights should not be terminated because the children would benefit from the parental relationship; although appellant had been unable to maintain visitation due to her incarceration, she had a strong desire to have contact with them. In this regard, appellant testified that, during the first two years of her incarceration, she wrote to the children weekly and telephoned them, and they corresponded with her as well. In addition, the children visited her in prison at times. Appellant continued to write to the children and received mail from them until fairly recently, but the last time they visited was about two years ago. In their letters, appellant claimed, the children said they loved her and missed her and wanted her to come home. Appellant acknowledged that the children should stay with their guardians until she was able to get a home, obtain a job, and provide for them.
The juvenile court found by clear and convincing evidence that it was likely the minors would be adopted. It further found that any bond appellant had with the minors was outweighed by the stability the children would enjoy if adopted, and the beneficial relationship exception to adoption did not apply. The court then terminated appellant's parental rights as to Angelica and Anabel.
In addition, based on evidence and argument we describe post, the juvenile court granted the Department's request for an order restraining appellant from further contact with the minors and their prospective adoptive family.
This appeal followed.
II. DISCUSSION
As mentioned, appellant contends: (1) the juvenile court erred in refusing to file appellant's section 388 petition and denying appellant's request for a continuance to file the petition; (2) the section 366.26 findings and orders terminating parental rights should be reversed because the court failed to properly inquire as to the children's father's Indian ancestry; and (3) the restraining order was not supported by substantial evidence.
A. Section 388 Petition and Request for Continuance
Appellant contends the court's refusal to consider her section 388 petition, or to allow a continuance so that the petition could be filed and considered, was erroneous and constituted a violation of her due process rights. Our analysis begins with a closer look at appellant's request to file the petition.
1. Background
On August 17, 2010, appellant received notice that the section 366.26 hearing would be held on November 4, 2010, and the social worker was recommending the termination of parental rights. Waiting until the section 366.26 hearing on November 4, appellant's attorney informed the court for the first time that appellant had signed and wanted to file a section 388 petition to rescind the minors' guardianships, return them to her care (she was scheduled to be released from prison on November 28, 2010) and grant her reunification services.
According to appellant's counsel at the hearing, the proposed petition would seek rescission of the guardianship, the return of the children to appellant's care, and reunification services; the court construed the petition as a request to "set aside the 26 hearing [or the order setting the hearing] because that is, in effect, a denial of reunification." The parties do not contend that the characterization is germane to this appeal.
County counsel asserted that appellant's petition was untimely because it was not filed before the section 366.26 hearing. Appellant's counsel requested a continuance of the section 366.26 so the petition could be filed and to "give the mother a right to let the Court know how she feels and request - it's in the children's best interest to be reunified." Attempting to explain appellant's failure to file the petition earlier, counsel claimed she could communicate with appellant only by mail due to appellant's incarceration. The court countered that "[s]he had three months to go back and forth in the mail and this is the day of the hearing."
After considering further argument of counsel, the court decided to proceed as follows: deny the request to file the petition; set a contested hearing under section 366.26 for November 18; but in the interim consider the timeliness of the petition further and permit counsel to provide the court with relevant legal authorities.
After emails to the court from county counsel and appellant's counsel, the court restated its prior ruling and denied appellant's request to file the section 388 petition.The contested hearing on the termination of parental rights was held on November 18.
In her email, appellant's counsel asserted that appellant "does not seek to remove the children from the care and custody of the guardians" but wanted to participate in their lives at "some level."
2. The Court Did Not Err
Until the time that a section 366.26 hearing is set, a parent's interest in reunification is given precedence over the child's need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) By the time the section 366.26 hearing is set, however, the focus shifts to the needs of the child for permanency and stability. (Marilyn H., at p. 309.) At that point, the means by which a parent may revive the reunification issue is a petition under section 388. (Marilyn H., at p. 309.) Because of the availability of a section 388 petition, an oral attempt at the section 366.26 hearing to seek reunification services and delay permanency for the child is insufficient. (Marilyn H., at pp. 309-310.)
Here, the section 366.26 hearing was set in July 2010. The means by which appellant could delay the proceedings and seek reunification services was by petition under section 388. By the time of the section 366.26 hearing in November 2010, appellant had not filed the petition. To the extent she orally attempted to seek the return of the children to her care and obtain reunification services, her efforts had no merit. (Marilyn H., supra, 5 Cal.4th at pp. 309-310; see In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609 [section 388 petition "may be filed at any time before the section 366.26 hearing," and "the court is not required to entertain an oral motion under section 388 at the time set for the 366.26 hearing"].)
Because appellant had actually signed a section 388 petition and presented it for filing at the section 366.26 hearing, appellant claims the court should have permitted the petition to be filed so she could proceed on the written petition. Respondent urges that a section 388 petition must be filed before the hearing, not at the hearing. (See Baby Boy L., supra, 24 Cal.App.4th at p. 609 ["[s]uch a petition may be filed at any time before the section 366.26 hearing"].) Appellant provides no authority to the contrary, or any authority that the court must file a section 388 petition presented at the outset of a section 366.26 hearing. Rather, she counters that the section 366.26 hearing had not actually begun, and the hearing could have been continued so as to allow the petition to be filed before the hearing.
Permitting appellant's section 388 petition to be filed, either at the section 366.26 hearing or after obtaining a continuance of the hearing, would have required a postponement of the section 366.26 hearing in order to resolve the issues raised by the petition. The nub of the matter, therefore, is whether appellant made a sufficient showing to justify a continuance of the section 366.26 hearing. We review the court's decision for an abuse of discretion. (See Marilyn H., supra, 5 Cal.4th at p. 299, fn. 3.)
Section 352, subdivision (a) provides that, upon good cause shown, the juvenile court may grant a parent's request to continue a hearing to a date beyond the time by which the hearing must otherwise be held, provided the continuance is not contrary to the interests of the minor. In determining whether to grant the continuance, the court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).)
To obtain a continuance, written notice must be filed at least two court days before the date set for the hearing, "unless the court for good cause entertains an oral motion for continuance." (§ 352, subd. (a).) Here, appellant did not file a written request for a continuance, and there was no good cause shown for entertaining an oral request: appellant knew of the section 366.26 hearing over two months in advance, and despite appellant's concerns about the reliability of the mails, there is no apparent reason that counsel could not have filed a written request in a timely manner. The request for a continuance could have been denied on this ground. The court nonetheless "entertain[ed] [appellant's] oral motion for [a] continuance" (§ 352, subd. (a)) and denied it on the merits.
The court did not err in denying appellant's request for a continuance. As the court noted, appellant had nearly three months' advance notice of the section 366.26 hearing and the recommendation that her parental rights would be terminated. Given this amount of notice, it was reasonable for the court to conclude that counsel's claimed inability to communicate with appellant except by mail (and her later assertion that appellant brought the petition to court because she was not confident it would get there on time by mail) provided no legitimate reason for failing to file the section 388 petition before the section 366.26 hearing. (In re Marilyn H., supra, 5 Cal.4th at p. 299, fn. 3 [court was "well within its discretion" in denying mother's request for a continuance of the § 366.26 hearing in order to file a § 388 petition, where counsel did not provide a reason for failing to file the petition earlier].)
In fact, appellant managed to sign on October 20, 2010, and file with the court on November 2, 2010, an "ICWA-020" form in response to the Department's correspondence in September 2010. The form was received by the court on October 28, 2010.
Moreover, a continuance may not be granted if it would be contrary to the best interests of the minor. (§ 352, subd. (a).) Ample evidence supports the conclusion that a continuance of the section 366.26 hearing was contrary to the children's best interests. By the time appellant requested the continuance, the children's interest in stability and permanence was paramount. The children were strongly bonded to their guardians, wanted to be adopted by them, had been in out-of-home care since February 2002, had no current relationship with appellant, and had no interest in further contact with her. Their best interest was to proceed with the section 366.26 hearing forthwith.
Appellant argues that permitting the filing of the section 388 petition on the date set for the section 366.26 hearing, or granting a continuance to permit the filing, would have only caused a delay of one day, and in any event the section 366.26 hearing had to be continued because the termination of parental rights was contested. Appellant's argument is unpersuasive. Unless the petition was so meritless on its face that the court would have summarily denied it (and thus the refusal to file it was categorically harmless), allowing appellant to file the section 388 petition presented a substantial risk of a significant delay beyond the date ultimately set for the contested section 366.26 hearing. It would have required time for the court to determine whether there was sufficient evidence to hold a hearing on the issues presented by the petition, time for the other parties to respond to appellant's allegations and evidence and prepare for the section 388 hearing, and then time for the section 388 hearing itself. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Appellant made no credible representation to the juvenile court that these section 388 proceedings could be accomplished by the date of the contested section 366.26 hearing, and it was reasonable to infer they would not.
Appellant notes that a petition timely filed on November 3 would have caused the same risk of delay, so presenting the petition one day later on November 4 was of no consequence. But that is not the issue. If the petition had been filed on November 3, it would have been timely filed. By contrast, appellant's request to file the petition at the section 366.26 hearing, or to have the section 366.26 hearing continued so she could file it, required the court to consider the delay posed by the petition in order to decide whether to grant appellant's request. Appellant's decision to bring the petition to the hearing on November 4 thus opened up an inquiry she would not have faced if the petition had been filed on November 3. In any event, whether the petition had been presented for filing on November 3 or on November 4, the delay it posed would have ultimately resulted in its denial, because in either instance the likelihood of undue delay would have been considered in evaluating the merits of the petition. As discussed post, the record establishes that the petition would have been denied if it had been filed.
Appellant next argues that "fundamental fairness requires that a parent be given the opportunity to file a section 366.26 petition when the section 366.26 proceeding is the parent's first court appearance following the hearing setting the section 366.26 proceeding and the section 366.26 proceeding is being continued anyway in order to provide for a contested hearing." Ostensibly, appellant means that fundamental fairness requires that a parent be given the opportunity to file a section 388 petition. Appellant had that opportunity, from the time she was notified of the section 366.26 hearing on August 17, 2010, and up to the section 366.26 hearing on November 4, 2010. She did not avail herself of that opportunity.
Appellant also refers us to In re Michael R. (1992) 5 Cal.App.4th 687. There, a mother sought a continuance of the section 366.26 hearing so she could complete a residential drug treatment program, as part of her reunification services, before seeking relief under section 388. (Id. at p. 690, 692, 695.) The juvenile court expressed a desire to grant the motion because of the strides the mother had made, but denied the continuance on the ground it lacked jurisdiction to do so. (Id. at p. 692, 695.) On appeal, the court ruled that the juvenile court erred in failing to exercise its discretion under section 352. (Id. at p. 695.) In the matter before us, by contrast, the continuance would not have been in the best interest of the minors, and the juvenile court made no indication it would be in their best interests. To the contrary, the court in this case was concerned with the delay the postponement of the proceedings would have on the children's permanent plan of adoption.
Appellant argues in her reply brief that it was respondent who waited until July 2010 to ask the court to reopen the dependencies for the purpose of pursuing adoption, and given that the children had been in their guardianships for over eight years the delay posed by appellant's proposed section 388 proceedings would not have been significant. Appellant did not make this argument to the juvenile court. Furthermore, while there might have been a number of different courses the juvenile court could have taken, appellant has not established that the ruling the court did make was arbitrary or irrational so as to constitute an abuse of discretion. Appellant therefore fails to establish error.
3. No Prejudice to Appellant
Even if the court's denial of the continuance and refusal to file the section 388 petition had constituted error, the record does not show that appellant suffered prejudice. To the contrary, the record indicates that the section 388 petition, even if it had been filed, would have been denied.
Section 388 authorizes a parent to petition for modification of a previous order of the juvenile court if there has been a change of circumstances. The parent has the burden of showing that there has been both a change of circumstances or new evidence, and that revoking or modifying the previous order would be in the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) If the allegations of the petition fail to show changed circumstances such that the child's best interests would be advanced by the modification, the court may summarily deny the petition. (Ibid.) Otherwise, the court must grant a hearing on the merits of the petition. (Marilyn H., supra, 5 Cal.4th at p. 310.)
In requesting the continuance, appellant's counsel asserted that appellant's section 388 petition would seek rescission of the minors' guardianships, the return of their care to appellant, and an order granting reunification services. Counsel later clarified that the petition would not seek to remove the children. The changed circumstances warranting this relief, apparently, was that appellant was going to be released from prison and had participated in parenting classes. Her counsel stated: "[T]he mother would like to tell the Court what it is that she has been doing since the time that she has been incarcerated. She has done substantial amount of work with respect to taking parenting classes. She has gotten many letters of recommendation from people within the prison system about the work done in the prison system." However, no details were offered as to why the proposed modification, and its effect on the permanency of the minors, would be in the minors' best interests. Nor does the record provide any indication that appellant's petition would have been other than as counsel depicted it at the hearing and in subsequent correspondence to the court.
Conclusory allegations, and allegations that merely suggest a parent might be able to reunify at some point in the future, are insufficient to constitute a prima facie showing of changed circumstances such that the proposed modification of the order would be in the best interests of the children. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 ["A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests"].) The fact that appellant was going to be let out of prison and had taken parenting classes is a far cry from a change of circumstances that would justify delaying the minors' adoption and providing reunification services to appellant, with whom the minors had no relationship and wanted no contact. Indeed, as we discuss post, after hearing appellant's testimony the court was ultimately convinced to impose a permanent restraining order precluding appellant from any contact with the minors for three years. In this context, regardless of what appellant would have said about her changed circumstances, it is fanciful to think that appellant would have convinced the court it was in the children's best interests to postpone their adoption so that appellant could receive reunification services.
Accordingly, even if the court had allowed appellant's section 388 petition to be filed, the petition would have ultimately been denied. (In re Edward H. (1996) 43 Cal.App.4th 584, 594 [summary denial of section 388 petitions on the eve of the section 366.26 hearing, because at that point the children's interest in stability outweighed any interest in reunification, and the prospect of an additional six months of reunification would not have promoted the children's best interests]; see also In re Anthony W., supra, 87 Cal.App.4th at pp. 249, 251-252; In re Zachary G. (1999) 77 Cal.App.4th 799, 804, 808.) Any error in the court's denial of appellant's request to file the petition was harmless beyond a reasonable doubt, and appellant has failed to establish prejudicial error under California law or the prejudicial deprivation of appellant's due process rights.
B. Indian Child Welfare Act
Appellant raises for the first time an issue concerning compliance with the Indian Child Welfare Act (ICWA), despite her representation before the section 366.26 hearing that she has no Indian heritage, the children have no Indian heritage, and she has no knowledge that their father has any Indian heritage. Her hope is that we vacate the juvenile court's orders and compel further compliance with the inquiry and notice provisions of the ICWA.
1. Initial ICWA Compliance
The ICWA, codified at 25 United States Code sections 1901 through 1963, was enacted in 1978 to preserve and protect Indian children, families, and tribes in the context of child dependency actions under state law. It applies whenever an Indian child is the subject of a child custody proceeding, including proceedings for termination of parental rights. (25 U.S.C. § 1912(a).)
When the initial dependency proceedings began in 2002, the ICWA required the social worker and juvenile court to inquire into the children's Indian ancestry. "However, as long as the social worker did inquire of the parents, and as long as the parents failed to provide any information requiring follow up, she had no further duty." (In re S.B. (2005) 130 Cal.App.4th 1148, 1161.) Moreover, a juvenile court "had no obligation to make a further or additional inquiry absent any information or suggestion that the child might have Indian heritage." (In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.)
Because the Department's efforts revealed no indication of Indian heritage, respondent asserts that the 2002 proceedings complied with ICWA law as it existed at the time. (See S.B., supra, 130 Cal.App.4th at pp. 1154, 1161-1162; Aaliyah G., supra, 109 Cal.App.4th at pp. 942-943.) In her reply brief, appellant represents that she "only challenges the section 366.26 proceedings for ICWA compliance, not the prior proceedings."
2. ICWA Compliance in Present Proceedings
The dependency proceedings that commenced in 2002 were terminated in 2006, but proceedings were reinstated on petition of the Department in 2010 for the purpose of seeking the termination of appellant's parental rights and providing for a permanent plan of adoption pursuant to a section 366.26 hearing. By that time, new ICWA requirements had been enacted.
Section 224.3, subdivision (a) - effective January 1, 2007 - provides in part: "The court [and] county welfare department . . . have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child . . . ." California Rules of Court, rule 5.481 - effective January 1, 2008 - provides in part: "at the initiation of any . . . proceeding to terminate parental rights . . . the court must order the parent . . . if available, to complete Parental Notification of Indian Status (form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(2).) Furthermore, if a parent is not available at the initiation of the proceeding, "the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent, Indian custodian, or guardian that the court has ordered the parent, Indian custodian, or guardian to complete Parental Notification of Indian Status (form ICWA-020)." (Cal. Rules of Court, rule 5.481(a)(3), italics added.) If possible Indian heritage is revealed, there is a duty to provide notice concerning such to the parent and Indian child's tribe. (§ 224.2; rule 5.481(b).) Respondent acknowledges: "Arguably, . . . these new provision[s] did require both the Department and the court to revisit the issue of Indian ancestry in connection with the section 366.26 hearing set for November 2010."
Because the parties assume that rule 5.481(a) applied to the 2010 proceedings for termination of parental rights, we will proceed upon the same assumption. In addition, the parties agree that, even though appellant is not the parent with possible Indian heritage, she has standing to assert the ICWA inquiry issue. (In re B.R. (2009) 176 Cal.App.4th 773, 779; In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Appellant argues that she has not forfeited or waived the issue of ICWA inquiry or notice by failing to raise it previously, because the requirements are intended to protect the interests of the Indian tribe, not the parent. (In re B.R., supra, at p. 779; In re Jennifer A. (2002) 103 Cal.App.4th 692, 706-707.) Respondent does not argue to the contrary.
These new ICWA requirements were plainly met as to appellant. In its report for the section 366.26 hearing, the Department advised that it had sent the appropriate ICWA forms to appellant and to Gustavo C., requesting that they complete, sign and return the forms to the Department. Appellant responded by letter dated August 11, 2010, stating that "Angelica, Anabel and Marilyn have no Native American Ancestry," although she did not return the ICWA-020 form. The Department sent appellant the form again on September 28, 2010, requesting that she complete and return it. Appellant's Parental Notification of Indian Status (form ICWA-020) was filed with the court on November 2, 2010, indicating that, as far as she knows, she has no Indian ancestry.
Compliance as to Gustavo C. is a closer question. The second ICWA-020 was sent to Gustavo on October 18, 2010, with a request that he complete, sign and return the form to the Department. At the time of the section 366.26 hearing, Gustavo had not returned the form. In its section 366.26 report, the Department disclosed that there was insufficient information to determine if the children may be Indian children and indicated it would update the court at the next hearing and seek the appropriate ICWA finding. At the conclusion of the section 366.26 hearing on November 18, 2010, the juvenile court ordered: "There is currently insufficient information to determine if child may be an Indian child, the parents are ordered to assist the Department in its investigation, and the Department will update the court by the next hearing and seek the appropriate ICWA finding."
Because the court made this order knowing that the ICWA-020 had been sent to Gustavo C., respondent urges that the order essentially directs Gustavo to complete and return the ICWA-020. Appellant argues, however, that the court did not order the Department to find and inform Gustavo that the court had ordered him to complete form ICWA-020. Appellant also suggests that, because the court issued this order at the section 366.26 hearing, at which appellant's parental rights were terminated, there was nothing the court could do if it later learned that Gustavo was of Indian ancestry.
Whether or not there was literal or technical compliance with this particular ICWA requirement as to Gustavo C., any error in this regard would be harmless. First, the court's decree that "the parents are ordered to assist the Department in its investigation" concerning the applicability of the ICWA was served on Gustavo's attorney. Accordingly, appellant fails to show any prejudice in the court's failure to also order the Department to "find and inform" Gustavo that the court ordered him to complete the ICWA-020. Similarly, since Gustavo did not return the form after the court ordered him to cooperate with the Department, there is no reason to expect that Gustavo would have returned the form even if the Department had told him the court ordered him to do so.
Second, there is not the slightest suggestion, despite inquiries in the first and second dependencies, that the children or Gustavo have any Indian ancestry such that the ICWA would apply. Neither appellant nor Gustavo said anything to the juvenile court about the ICWA or any possible Indian ancestry during the proceedings commenced back in 2002, and none of the efforts in the original proceeding resulted in any indication that the ICWA was germane. In this proceeding, appellant has expressly denied any knowledge that she or the children have Indian ancestry.
Third, even if the ICWA did apply, it would be extremely unlikely that any different outcome to these proceedings would result. The ICWA gives placement preference to "a member of the child's extended family" (25 U.S.C., § 1915(a)(1)), which is "defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent" (25 U.S.C. § 1903(2)). The minors are placed with appellant's sister, Teresa, and her husband. Appellant does not argue that Teresa is not an "aunt" within the meaning of 25 U.S.C. section 1903(2); nor does she provide authority that the law or custom of any Indian tribe does not include an aunt as "a member of the child's extended family." (25 U.S.C. § 1915(a)(1).) Based on the record in this case, the ICWA placement preference has already been effected.
Moreover, removal of the minors from their current home after all these years would be exceptionally harmful and, as a consequence, would likely never be ordered even if the placement with Teresa and her family could be challenged under the ICWA. The State Department of Social Services' Adoption Assessment report stated: "Based on current information, removal from the prospective adoptive parents would be seriously detrimental to the children's well being." Although appellant quibbles with the phrase "[b]ased on current information," nothing that would come to light about the children's Indian ancestry would make it less seriously detrimental for them to be removed from the home of the prospective adoptive parents.
Appellant fails to establish reversible error.
The ICWA applies only to minor children. (In re Melissa R. (2009) 177 Cal.App.4th 24, 26, 34 [reversal due to noncompliance with ICWA would be "futile" where minor is over 18 and thus is no longer an "Indian child" for purposes of the Act].) Appellant's claim of reversible ICWA error is therefore meritless in the context of the dependency proceedings with respect to Marilyn, who is over the age of 18.
C. Restraining Order
After termination of appellant's parental rights, the court issued a temporary restraining order, and ultimately a permanent restraining order, precluding appellant from further contact with the minors and their adoptive family. Appellant contends the order is not supported by substantial evidence.
1. Background
At the conclusion of the contested section 366.26 hearing, county counsel requested that a restraining order be issued against appellant on the ground that she had frightened the children by having other inmates contact them. The Department's written request sought to have appellant restrained from contact with the girls, their guardians, and the guardians' birth children. The court issued a temporary restraining order and scheduled a hearing for November 23, 2010, in regard to a permanent restraining order.
On November 22, 2010, the Department submitted a similar application for a restraining order, describing appellant's conduct as follows: "[Appellant] has been sending letters to her daughters and the prospective adoptive parents which has intimidated and caused concern and fear to all parties. Additionally, [appellant] has given out the prospective adoptive parents' telephone number and asked inmates to contact the family. There is also a letter from [appellant] which states that she would rather be dead than to give the prospective adoptive parents custody of her daughters. [Appellant] also made mention of the prospective adoptive parents' two sons . . . in a context which has caused fear to the prospective adoptive parents and their sons."
At the hearing on November 23, 2010, the court received exhibits and heard testimony from Teresa and appellant. Teresa testified that she was "very afraid" of appellant and had been for the last nine years. Throughout appellant's incarceration, Teresa explained, appellant wrote to her and threatened to "take the girls away." In one letter, appellant stated "she is going to do whatever she wants and she doesn't care about no courts." In letters to the minors and their guardians, appellant stated that she opposed the proposed adoption, she was not going to "allow it," and "[n]o court paper will ever take [them] away from [her]." Appellant even wrote to Teresa: "I prefer to be Dead than to give you custody of my daughters." Because of appellant's statements, Teresa feared that appellant might take the girls, or at least worry and scare them, when she was released from prison.
In addition, Theresa testified, appellant had given the guardian's telephone numbers to former inmates and asked them to call the girls. The guardians received approximately five such calls about three years before the hearing, and these calls gave Teresa "a lot of fear." The guardians had not received any recent calls, having changed their telephone number four times during the pendency of these proceedings. Teresa further testified that appellant had turned their family against Teresa and written Teresa's priest to discourage her from adopting the girls.
Appellant testified that she would not disobey a court order to stay away from her children and was willing to wait for the girls to contact her. She claimed that she had received letters from her daughters within the last two years, stating they wanted to have contact with her.
Counsel for the minors asserted that it was "very obvious that my clients feel threatened by" appellant and that Teresa is afraid of her.
The court granted the permanent restraining order for a term of three years, finding that appellant had caused the adoptive parents and the children fear and emotional harm by sending threatening letters and by asking former inmates to contact the family.
2. Law
Section 213.5, subdivision (a) provides: "After a petition has been filed pursuant to Section 311 to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated, upon application in the manner provided by Section 527 of the Code of Civil Procedure, the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who has care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2). A court may also issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian or current caretaker of the child . . . upon application in the manner provided by Section 527 of the Code of Civil Procedure." Subdivision (d) reads: "The juvenile court may issue, upon notice and a hearing, any of the orders set forth in [subdivision (a)]. Any restraining order granted pursuant to this subdivision shall remain in effect, in the discretion of the court, no more than three years, unless otherwise terminated by the court, extended by the mutual consent of all parties to the restraining order, or extended by further order of the court on the motion of any party to the restraining order."
Actual violence or threatening behavior is not required for issuance of a restraining order under section 213.5. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 211-212.) All that is required is "molesting" conduct, including acts that "trouble, disturb, annoy or vex." (Id. at p. 212.)
3. Substantial Evidence
Substantial evidence supports the conclusion that appellant engaged in molesting behavior, within the meaning of section 213.5. Appellant's letters could reasonably be read as threats to take the girls away from their home forcibly and against their will, notwithstanding the adoption and the termination of appellant's parental rights. Appellant's enlisting of former inmates to call the family could reasonably be viewed as an attempt to intimidate or harass the family. This conduct was troubling, disturbing, annoying and vexatious to Teresa and the children: Teresa testified that she was very afraid of appellant, she was very fearful from the telephone calls received from the inmates, Marilyn became worried due to one of appellant's letters, and the children did not want any further contact with appellant. In addition, it was alleged, appellant "made mention of the prospective adoptive parents' two sons . . . in a context which has caused fear to the prospective adoptive parents and their sons."
Substantial evidence also supports the conclusion that appellant would engage in the same or similar molesting behavior once she were released from prison, if a restraining order were not issued. The court did not err in issuing the restraining order.
Appellant's arguments to the contrary are meritless. She notes that her conduct of asking inmates to contact the family occurred three years ago. The cited testimony, however, was simply that Teresa had not received any such calls in the past three years, a circumstance not particularly significant since Teresa changed her telephone number several times and, when Teresa confronted appellant about the inmates' calls, appellant became upset and said they were her friends and she had the right to have them call. Nor do we find great significance in the fact that Teresa had not sought the assistance of the juvenile court. In any event, the inmates' calls were only part of appellant's conduct justifying the restraining order.
Appellant also claims "there was no evidence that the conduct was designed to disturb, irritate, offend, injure, or tend to injure any person" because appellant "was isolated from society as a result of her incarceration" and "seeking to have contact with her children by having other people contact them." She offers similarly weak spins on her other conduct as well. But our role is not to reweigh the evidence or second-guess which of numerous inferences should have been drawn from the evidence by the juvenile court; our role is merely to determine whether there is substantial evidence from which a reasonable trier of fact could have reached the court's conclusions. As set forth ante, there was such substantial evidence.
Appellant fails to establish error.
III. DISPOSITION
The orders are affirmed.
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NEEDHAM, J.
We concur.
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JONES, P. J.
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BRUINIERS, J.