Opinion
G054076
05-23-2017
In re E.J. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.B. et al., Defendants and Appellants.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant R.B. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant J.K. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on May 23, 2017, be modified as follows:
On page 3, delete the final two sentences in the first full paragraph, beginning with, "In case Nos.," and replace those sentences with the following:
In case Nos. DP026052-001 and DP026469-001, we reverse the disposition orders, and remand the matters to the juvenile court with directions to require SSA to consider the paternal grandparents for placement of J.B. and A.B. Consistent with the views expressed in
this opinion, the reversal and remand is limited to the consideration of the paternal grandparents for placement of J.B. and A.B., and the disposition orders remain in full force and effect as to all other matters contained within them. On remand, the juvenile court shall review whether SSA has assessed or is assessing the paternal grandparents for placement. Following the juvenile court's review of the status of the consideration of the paternal grandparents for the placement of J.B. and A.B., the disposition orders shall be reinstated if the paternal grandparents decline or are rejected for placement; and the disposition orders shall be reinstated with modification if the paternal grandparents are approved for placement. Consistent with its obligations under the Welfare and Institutions Code, SSA shall ensure J.B. and A.B. have a safe, secure, temporary placement until the review of the paternal grandparents for placement is completed.
On page 28, delete the last two sentences of the first full paragraph, beginning with "We reverse the disposition orders," and replace them with the following:
We reverse the disposition orders as to J.B. and A.B. so that SSA may properly consider the paternal grandparents for placement, as described fully in the disposition.
On page 29, delete the paragraph under the heading "Disposition," and replace it with the following:
The orders in case Nos. DP026050-001 and DP026051-001 are affirmed. The orders in case Nos. DP026052-001 and DP026469-001 are reversed and remanded for further proceedings with respect only to the consideration of J.B. and A.B.'s paternal grandparents for placement. Consistent with the views expressed in this opinion, the reversal and remand is limited to the consideration of the paternal grandparents for placement of J.B. and A.B., and the disposition orders remain in full force and effect as to all other matters contained within them. On remand, the juvenile court shall review whether SSA has assessed or is assessing the paternal grandparents for placement. Following the juvenile court's review of the status of the consideration of the paternal grandparents for the placement of J.B. and A.B., the orders in case Nos. DP026052-001 and DP026469-001 shall be reinstated if the paternal grandparents decline or are rejected for placement; and the disposition orders shall be reinstated with modification if the paternal grandparents are approved for placement. Consistent with its obligations under the Welfare and Institutions Code, SSA shall ensure J.B. and A.B. have
a safe, secure, temporary placement until the review of the paternal grandparents for placement is completed.
This modification does not effect a change in the judgment. The petition for rehearing is DENIED.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.
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. (Super. Ct. Nos. DP026050-001, DP026051-001, DP026052-001, DP026469-001) OPINION Appeals from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed as to orders in case Nos. DP026050-001 and DP026051-001; reversed and remanded with directions in case Nos. DP026052-001 and DP026469-001. Request for judicial notice or, in the alternative, motion to take additional evidence. Denied. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant R.B. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant J.K. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minors.
* * *
INTRODUCTION
The juvenile court found that four children, now ages 13, 12, three and a half, and one and a half, came within its jurisdiction on the basis they had suffered, or there was a substantial risk they would suffer, serious physical harm or illness. (Welf. & Inst. Code, § 300, subds. (a), (b).) (All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.) The court subsequently found that the children could not be returned to the custody and care of their mother (§ 361, subd. (c)), and that their mother should not receive reunification services (§ 361.5, subd. (b)(6)).
The children's mother appeals from the disposition orders. Based on the serious injury suffered by one of the children, we conclude the juvenile court correctly denied reunification services to the mother. We further conclude that the mother's due process rights were not denied by the invocation of the Fifth Amendment to the United States Constitution as to certain questions posed to the father of the two older children, or by that father's telephonic testimony. Finally, while the mother correctly notes that the Orange County Social Services Agency (SSA) failed to provide proper notice under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), that failure has been corrected, and the mother concedes that her argument on appeal is moot. Therefore, we affirm the disposition orders in case Nos. DP026050-001 and DP026051-001.
The biological father of the two younger children also appeals from the disposition orders. First, he argues that the delays of the jurisdiction and disposition hearings violated his due process right to reunification with his children. We agree that the delays, which resulted in the disposition orders being filed 18 months after detention of the three eldest children, were serious and not adequately explained by SSA. But because the record does not reflect whether the appellant father was actually denied services, or whether a permanency planning hearing was set before he was able to avail himself fully of the services offered, his argument of denial of constitutional rights is premature. The appellant father also argues that the juvenile court erred by failing to ensure that SSA assessed his parents for placement of the two younger children. The appellant father is correct that SSA was required to identify, locate, and determine whether the paternal grandparents would accept placement of the two younger children. In case Nos. DP026052-001 and DP026469-001, we reverse the disposition orders, and remand the matters to the juvenile court with directions to require SSA to consider the paternal grandparents for placement of the two younger children. If the paternal grandparents decline or are rejected for placement, the disposition orders shall be reinstated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
E.J., K.J., and J.B., then ages 11, nine, and one, respectively, were taken into protective custody based on physical injuries suffered by J.B. R.B., the mother of all the children (mother) had brought J.B. to the emergency room due to bruising on his head that "just appeared yesterday." It was discovered that J.B. had two fractured tibias; numerous brown bruises, which were the size of fingers, on the right side of his head; other bruises on his head, back, and scrotum; subconjunctival hemorrhages in both eyes; and elevated liver enzymes that could indicate trauma to his abdomen. A child abuse expert at the hospital advised that the fractures were nonaccidental and had been caused by "significant force." Mother could not explain any of J.B.'s injuries. A juvenile dependency petition was filed, alleging the children came within the juvenile court's jurisdiction pursuant to section 300, subdivisions (a), (b), and (e).
Mother claimed she believed that she had Cherokee heritage, although she was not registered with any tribe, and that E.J. and K.J.'s father, C.J., had Native American heritage.
A.B. was born during the pendency of the dependency proceedings. A.B.'s parents are mother and J.K. (J.K. is also J.B.'s father.) A.B. was immediately taken into protective custody, and a juvenile dependency petition was filed, alleging that he came within the juvenile court's jurisdiction pursuant to section 300, subdivisions (a), (b), and (j).
After a contested evidentiary hearing, held on multiple days over two months, the juvenile court found that it had jurisdiction over E.J., K.J., and J.B. under section 300, subdivisions (a) and (b), and over A.B. under section 300, subdivisions (a), (b), and (j). The court dismissed the section 300, subdivision (e) count.
The disposition hearing took place on multiple days between February and September 2016. At the end of the hearing, the juvenile court declared all four children to be dependents of the juvenile court, removed them from the custody and care of mother, and found by clear and convincing evidence "that there would be a substantial danger to the physical health, safety, protection, physical or emotional well-being of each of the minors if the minors were returned to mother; and that [the] court would find, in addition, that there are no reasonable means by which the minors' physical health can be protected without the removal of the minors from mother's home; and that there are no reasonable means by which they can be maintained in the home with the provision of services."
The court denied reunification services to mother, pursuant to section 361.5, subdivision (b)(6). The court vested custody of E.J. and K.J. with their father, C.J., pursuant to section 361.2, subdivision (a), retained jurisdiction, and adopted the recommended family maintenance plan. The court vested custody of J.B. and A.B. with nonrelative caregivers, the de facto parents. The court also ordered reunification services for J.K. as to J.B. and A.B. Mother and J.K. filed separate notices of appeal.
DISCUSSION
I.
DENIAL OF REUNIFICATION SERVICES TO MOTHER, PURSUANT TO SECTION 361 .5,
SUBDIVISION (b)(6)
"We review an order denying reunification services by determining if substantial evidence supports it." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196.) Section 361.5, subdivision (b)(6) "does not authorize the court to deny reunification services to a negligent parent, that is, a parent who did not know the child was being physically abused or injured (although the parent should have reasonably known of the abuse or injury)." (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 848.)
As relevant to this case, section 361.5 provides: "Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] . . . (A) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . . the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent . . . and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent . . . . [¶] . . . [¶] (C) A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent . . . ." (§ 361.5, subd. (b)(6)(A) & (C).)
Mother argues the juvenile court erred in finding section 361.5, subdivision (b)(6) applied. We conclude there was substantial evidence supporting the juvenile court's finding. Dr. Daphne Wong testified J.B. would have felt great pain and cried out at the time his legs were broken. J.B. would have been unable to crawl or walk, and would have been in great pain afterwards.
Although mother denied having harmed J.B., and there was no direct evidence of her having caused J.B.'s injuries, the evidence supported a finding that mother was the only person who could have caused the physical injuries. Mother also showed "an inexplicable reluctance" to take J.B. to the hospital. The court found her explanations for failing to do so were "hollow" and "false," given how much worse J.B. was at that time than when mother had taken him to see a doctor a few days earlier. Mother was not focused on J.B.'s pain while at the hospital. And when mother learned the extent of J.B.'s injuries, she did not express interest in finding out what happened or who was responsible.
Mother also argues the evidence did not support the juvenile court's finding that reunification services for her would not be in the children's best interest. "In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child's sibling or half sibling. [¶] (2) The circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling. [¶] (3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling. [¶] (4) Any history of abuse of other children by the offending parent or guardian. [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent or guardian." (§ 361.5, subd. (i).)
The juvenile court made findings as to each of these factors. The court addressed the first two factors together because "these acts of abuse . . . did not occur in a vacuum." The court found there was "repeated infliction of trauma to J[.B.], to his genitals, and then the breaking of the legs." The court noted that J.B. was born prematurely and had had significant health issues since birth. Despite her many previous contacts with medical care for J.B., mother did not seek medical attention when J.B.'s legs were broken. The court expressed "particular concern [over] the continued bruising of the genitals that occurred over a protracted period of time," which showed "[t]his was not an impulsive episode or a situational episode but a part of a series of inflictions of harm to the child that culminated [in] the breaking of the legs and the hospitalization on March 22nd."
The court found that the emotional trauma suffered by J.B., particularly as he "had been sick and had been premature," due to physical abuse at the hands of the person he would expect to provide for his care, support, and nurturing, would be severe. "[T]he court is going to note that being injured by the person that you normally look to, a child would look to for nurture and care, would have constituted severe emotional trauma." The court also found that E.J. and K.J. suffered severe emotional trauma as a result of their awareness that J.B. had been deliberately and intentionally injured.
The court found there was a history of abuse of mother's other children, particularly with the removal of mother's eldest child (a matter that is not before this court) and K.J.'s statements that she was disciplined with a belt.
The court found that the likelihood of returning the children to mother's care without supervision within 12 months was low. "The court would find that because of the nature of the acts that have been established here, the degree of denial, . . . mother's history in terms of interpersonal relationships and conduct being consistent with Dr. Goodwin's opinions and analysis and persuade the court, again, by clear and convincing evidence, that . . . none of the children can be safely returned to the care of mother within 12 months with no continuing supervision." Mother notes on appeal that Dr. Robert Suiter, mother's retained expert, testified that mother was making progress and reunification services would benefit her. Based on Dr. Suiter's observation of one visit between mother and the children, Dr. Suiter testified that mother had a healthy bond with all the children, and it would be detrimental to the children if they did not continue their relationship with her. The juvenile court, however, found that Dr. Suiter's testimony was not persuasive.
Finally, the court found that E.J. and K.J. had stated a desire to return to mother's care and custody, the only factor that would support the provision of reunification services as to those two children.
Based on all the foregoing, the court found by clear and convincing evidence that reunification services for mother would not benefit E.J., K.J., J.B., or A.B.
Mother first argues that she was denied due process because it was unclear whether the juvenile court sustained the section 300, subdivision (e) count at the jurisdiction hearing. The reporter's transcript and the court's minute orders were clear that the section 300, subdivision (e) count had been dismissed. It is equally clear that the juvenile court stated at the jurisdiction hearing that the section 300, subdivision (a) count, which was unquestionably sustained, provided the basis for the court to consider denying reunification services.
In mother's reply brief, she argues that the juvenile court's findings on this issue are inconsistent. We disagree. The court found that while J.B.'s injuries did not meet the criteria of section 300, subdivision (e), they were sufficient to justify denying reunification services under section 361.5, subdivision (b)(6). Further, the court found that, although there was not conclusive evidence that mother personally inflicted the injuries on J.B., there was sufficient evidence that mother, by act or omission, knowingly caused the injuries.
It is unclear how any lack of notice on this point would have violated mother's due process rights in any event. If counsel believed the section 300, subdivision (e) count had been sustained, and knew the juvenile court was considering denying reunification services under section 361.5, how was counsel prevented from preparing mother's argument in favor of services?
There is nothing inconsistent in the court's dismissal of the section 300, subdivision (e) count, while sustaining the section 300, subdivision (a) count and specifically finding that mother had inflicted severe physical harm on J.B. The court made specific findings that mother inflicted severe physical injury on J.B., while the court did not find the specific facts necessary to sustain the section 300, subdivision (e) count.
II.
TESTIMONY OF C.J.
C.J., the father of E.J. and K.J., testified via telephone on eight different days over four months during the jurisdiction and disposition hearings. C.J. asserted his Fifth Amendment right against self-incrimination in refusing to answer some of mother's counsel's questions. Mother contends that her right to cross-examine witnesses was violated by C.J.'s invocation of the privilege. As explained post, there were very few questions as to which the privilege was actually asserted, and mother's inability to question C.J. on those topics was not prejudicial.
Mother argues that allowing C.J. to testify by telephone was error because C.J.'s credibility was a significant part of the juvenile court's decisionmaking process. Mother fails, however, to prove any reversible error occurred.
A.
No Denial of Meaningful Opportunity to Cross-examine
Mother argues she was denied due process when she was prohibited from cross-examining C.J. We set forth here the testimony as to which mother claims she was denied the right to cross-examine C.J.
1. C.J. refused to answer a question about the type of drugs he was using when charged in 2004. He later answered the question, negating any earlier failure to answer.
"Q. Okay. What kind of drugs . . . did you use in 2004 in a criminal case?
"Ms. Smeets [(C.J.'s trial counsel)]: Objection. Relevance.
"The witness: I'll take the Fifth on this, ma'am."
Shortly thereafter, C.J. answered the same question.
"Q. Okay. Now, as far as the drugs involv[ed in] the 2004 case, what type of drugs did you use, sir? [¶] . . . [¶]
"A. It was meth and marijuana."
2. C.J. refused to answer a question regarding his previous guilty plea to a domestic violence charge. The juvenile court commented that the Fifth Amendment privilege would not apply, but that the question was argumentative. The court then sustained C.J.'s counsel's objection that the question was argumentative. Therefore, C.J.'s failure to answer the question was based on the argumentative nature of the question, not on the Fifth Amendment.
"Q. Okay. Now, sir, as you testified today, do you take responsibility for committing domestic violence against my client?
"A. No, sir.
"Q. So when you pled guilty, were you being honest with the court or not truthful with the court?
"Ms. Smeets: Objection. Fifth Amendment, and I would advise my client that he should assert his Fifth Amendment . . . .
"The witness: All, my attorney
"The Court: Stop, stop.
"The witness: All right.
"The Court: The court finds it difficult to understand how this would raise a Fifth Amendment concern.
"The witness: Yes, sir.
"The Court: No. Stop. [¶] The question, it strikes the court, however, as argumentative and provides—the plea is a finite fact, and—and the question that—the preceding question do you take responsibility is—has an aspect of vagueness to it that is—is difficult to place a parameter on it in a subjective sense. [¶] And then to ask whether, premised on that question, whether the question of the plea was accurate or inaccurate strikes me as an argumentative question.
"Ms. Smeets: Objection. Argumentative. [¶] . . . [¶]
"The Court: The objection is sustained. The court notes that he feels that he is not responsible."
3. C.J. initially asserted the Fifth Amendment as to questions regarding warrants against him, but withdrew that objection.
"Q. Sir, do you recall having any warrants against you for failing to comply with federal court orders? Do you recall that in your federal case? [¶] . . . [¶]
"A. I'll take the Fifth on that, because whatever I've done in the past, is done in the past."
After a pause in the proceedings during which C.J. conferred with his counsel, counsel advised the court:
"Ms. Smeets: I have advised my client, Your Honor, that his rights and responsibilities to assert the Fifth Amendment question by question. And I think the questioning can continue, Your Honor.
"The Court: All right. Is he still asserting the Fifth Amendment—his position on the Fifth Amendment?
"Ms. Smeets: Not as to this issue, Your Honor." Mother's trial counsel then proceeded to question C.J. regarding his federal offenses.
4. C.J. asserted the Fifth Amendment in refusing to answer questions regarding his statement to an SSA social worker regarding his past drug use. It was not proper for the Fifth Amendment to be asserted in this circumstance, as the only question was whether C.J. had made the statements to SSA, not whether he had, in fact, ingested illegal drugs. But all of these statements were included in SSA's report, which was admitted as evidence before the juvenile court. Therefore, C.J.'s refusal to answer the questions was not prejudicial error.
"Q. Do you recall speaking to [SSA social worker] Ms. Hochenedel [o]n July 16th of 2015 and she—you told her on that date in a telephone conversation you confirmed past marijuana use, noting his last use was roughly one year ago. Do you recall, and that was a year ago, from July 16th, 2015, do you recall telling Ms. Hochenedel that?
"Ms. Smeets: Objection. Vague. And also I advise my client to assert his Fifth Amendment right against self-incrimination."
The questioning of C.J. continued as follows:
"Q. On page five of the July 28th, 2015, addendum report, there's a statement attributed to you, sir, that says admitted he smoked marijuana at the time due to his youngest daughter making statements he was trying to comprehend, do you recall making that statement to Ms. Hochenedel?
The addendum report from July 28, 2015 included the following regarding C.J.'s alleged substance abuse: "The father's substance use history was explored. He confirmed his criminal history is the result of ecstasy. He indicated he engaged in raves and this is where the use occurred. He stated he was caught selling ecstasy and he would occasionally use as well. He noted he has also experimented with cocaine and acid. The father confirmed use of peyote when he was eighteen, but explained this occurred on the reservation for a ceremony. He confirmed past marijuana use, noting his last use was roughly one year ago. He admitted he smoked marijuana at that time due to his youngest daughter making statements he was trying to comprehend. He noted he does not believe in pills. The father reported he is frequently drug tested for work and he noted his father would confront him on any use. He not[ed] he has previously been drug tested three times in one week for work. He admitted he continues to smoke cigarettes, but stated he is trying to quit."
"Ms. Smeets: Objection. Vague. And I will advise my client to assert his Fifth Amendment right.
"The witness: I
"The Court: The objection to vague is overruled. The court would note invocation of the privilege.
"Ms. Smeets: And I would advise my
"The witness: I'll take the Fifth. [¶] . . . [¶]
"Q. Do you recall telling Ms. Hochenedel that you experimented with cocaine?
"Ms. Smeets: Objection. Well, I would advise my client . . . to assert his Fifth Amendment rights.
"The witness: I'll assert the Fifth. [¶] . . . [¶]
"Q. Do you recall telling Ms. Hochenedel you experimented with acid?
"Ms. Smeets: I will advise my client . . . to assert his right against self-incrimination.
"Mr. Baron [(trial counsel for the de facto parent caretakers)]: May I be heard, Your Honor? If Mr. Lacilento [(trial counsel for mother)] is specifically asking him if he did this, then I believe he has a Fifth Amendment right. However what Mr. Lacilento is asking is whether he had this conversation with Ms. Hochenedel.
"The Court: Indeed.
"Mr. Baron: I think that's not really a privileged communication.
"The Court: It—I'm aware of the distinction. I thank you, counsel, but I think it does fairly provide a link which could serve to tend to incriminate him, and that's the test. And it's an affirmation or reaffirmation of a previous statement, the court would note. Whether that's in evidence based on the reports is an entirely different issue. [¶] . . . [¶]
"Q. Do you remember reporting to Ms. Hochenedel that you used peyote?
"The witness: I'll assert the Fifth.
"Ms. Smeets: I'll advise my client to assert his Fifth Amendment right against self-incrimination.
"The witness: I assert the Fifth."
Again, the same line of questioning continued:
"Q. My question to you, sir, if I ask you any questions about you having used illegal drugs, is it your intent to invoke your Fifth Amendment rights to any questions regarding your use or usage of illegal drugs?
"Ms. Smeets: As to any questions related to the use in the past of illegal drug usage, I will advise my client to assert his Fifth Amendment right against self-incrimination. [¶] . . . [¶]
"The witness: Assert my Fifth.
"The Court: Hang on. We wandered from the point. The question is as to his intent, if he's going to assert his Fifth, not whether he's asserting his Fifth, but whether he intends to. [¶] . . . [¶]
"The witness: Okay. So then I invoke my Fifth.
"The Court: I'll put that down as a yes."
5. C.J. asserted the Fifth Amendment in response to a question regarding his alleged sale of methamphetamines. The juvenile court sustained the assertion of privilege, and offered mother's counsel the opportunity to rephrase his questions, but counsel refused.
"Q . . . [W]hen you were convicted in the federal court you were also selling methamphetamines as well as Ecstasy?
"A No, I was not.
"Q Isn't it true you sold methamphetamines?
"Ms. Smeets: Objection; relevance. Remote as to time. I would advise my client to assert the Fifth Amendment on that issue.
"The Court: I will ask that you rephrase, counsel.
"Mr. Lacilento: Sure.
"The Court: It's not clear what time frame we are dealing with.
"Q . . . Is it true in the last ten years that you have sold methamphetamines?
"Ms. Smeets: Objection, Your Honor. . . . I would advise my client to assert the Fifth Amendment right against self-incrimination.
"The Court: It's sustained on privilege.
"Mr. Lacilento: Your Honor, for the record, since the court is not finding waiver and sustaining it, I am going to—I have made my motions. I am being denied the right to meaningfully cross-examine the witness[]. The questions I need to ask are related to his alleged sobriety. I am not able to do that. I will deal with [it] in the appropriate manner in the future. I have no further questions based on the court's rulings which inhibit my ability to meaningfully cross-examine this witness.
"The Court: You are free to pose questions in a form that perhaps would avoid the issues of Fifth Amendment claims of privilege, but I leave that to you. You are free to inquire into other areas as you would choose. [¶] Again, I defer to you. Do you have any additional questions?
"Mr. Lacilento: I have no further questions at this time."
We note that although mother's counsel claimed he was unable to question C.J. regarding his current sobriety by the invocation of the Fifth Amendment privilege, the questions were directed to C.J.'s sale of illegal drugs, not his use of such drugs.
6. C.J. asserted his Fifth Amendment privilege in refusing to answer when he had last used heroin.
"Q. . . . Sir, when was the last time you used heroin? [¶] . . . [¶]
"Ms. Smeets: Your Honor, . . . I'm going to assert on my client's behalf Fifth Amendment privilege against self-incrimination regarding drug use or lack thereof."
Mother's counsel moved on at least two occasions to strike C.J.'s testimony for lack of a meaningful opportunity to cross-examine C.J. The court denied the requests. Mother's counsel also moved for a mistrial on the same ground. That motion, too, was denied.
When the questions are reviewed in context, we note mother's counsel failed to obtain an answer to a single question, regarding C.J.'s current use of heroin, based on the assertion of the Fifth Amendment privilege. The other questions to which the privilege was asserted were ultimately answered, had been answered in responses to SSA, or could have been asked in a different form.
In mother's reply brief, she states that the juvenile court did not know where C.J. lived, due to his assertion of the Fifth Amendment. None of mother's citations to the record, however, involves the invocation of the Fifth Amendment, and many of them are references to the testimony of witnesses other than C.J.
In a dependency proceeding, a parent does not necessarily have the same due process rights to full confrontation and cross-examination of witnesses as in a criminal proceeding. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176; Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.) We conclude the juvenile court's rulings on the assertions of the Fifth Amendment privilege, and the court's denial of the motions to strike C.J.'s testimony and to declare a mistrial, did not deprive mother of due process.
B.
Testimony by Telephone
Mother also argues the juvenile court erred by permitting C.J. to testify by telephone. We review the court's decision for abuse of discretion. (In re Nada R., supra, 89 Cal.App.4th at p. 1176.) The Evidence Code presumes that a witness's testimony will take place "in the presence and subject to the examination of all the parties to the action." (Evid. Code, § 711.)
C.J. lives in Alabama, where he has a job and has shared custody of a young child. C.J.'s testimony occurred on eight different days over the course of four months.
Over the objections of mother's counsel and counsel for the de facto parent caretakers, the juvenile court found good cause to proceed telephonically with C.J.'s testimony.
The juvenile court explained that it would be able to evaluate C.J.'s credibility over the phone. The court also employed procedures to ensure the testimony would be "proper," including electronically sending impeachment materials to C.J., and requiring that C.J.'s testimony take place in a discreet and nondistracting setting conducive to an examination. The court found that it was more likely that C.J. would be able to testify more completely if he were available telephonically with little notice, rather than scheduling travel to and from Alabama for each court date. In issuing its findings on disposition, the juvenile court reiterated its decision to allow C.J. to testify telephonically: "[T]o have required Mr. J[.] to be present throughout the duration of these proceedings or during testimony, which has fits and starts, . . . would have raised questions of fundamental fairness because of the protracted nature of these proceedings."
As the father of E.J. and K.J., C.J.'s testimony was crucial to the proceedings. C.J.'s credibility was a key issue in the proceedings. The juvenile court specifically found that it was able to evaluate C.J.'s credibility and to assess his emotional reactions despite his testifying telephonically. Mother's argument on appeal is essentially that the court could not have made findings on credibility and demeanor without seeing C.J. in person. Nothing in the appellate record disproves the court's findings or shows an abuse of the court's discretion.
III.
ICWA
In her appellate briefs, mother contends the juvenile court erred by failing to require that SSA comply with ICWA inquiry and notice requirements. Specifically, mother claims SSA did not provide proper notice regarding E.J.'s and K.J.'s Indian heritage through their father, C.J. We review the juvenile court's finding that the ICWA notice was adequate for substantial evidence. (In re J.T. (2007) 154 Cal.App.4th 986, 991.)
Federal ICWA notice requirements are triggered when (1) the juvenile court knows or has reason to know an Indian child is involved in the proceeding, and (2) foster care placement or termination of parental rights is sought. (25 U.S.C. § 1912(a).) SSA argues that because it never recommended E.J. and K.J. be placed in foster care, but rather they be placed with their father, C.J., any failure to properly provide notice under ICWA is harmless error. Under state law, however, ICWA applies "to most proceedings involving Indian children that may result in an involuntary foster care placement; guardianship or conservatorship placement; custody placement under Family Code section 3041; declaration freeing a child from the custody and control of one or both parents; termination of parental rights; or adoptive placement." (Cal. Rules of Court, rule 5.480, italics added.) Because SSA sought to remove E.J. and K.J. from the custody and control of mother, ICWA notice requirements were triggered.
SSA concedes that the ICWA notices for E.J. and K.J. were deficient for not containing the paternal grandfather's biographical information, although that information was available to SSA. SSA contends that mother did not suffer any prejudice. "Even if the juvenile court and SSA failed in their inquiry responsibilities, we cannot disturb the juvenile court's order without a showing [the appellant parent] was prejudiced by the claimed error. [Citation.]" (In re N.E. (2008) 160 Cal.App.4th 766, 769.)
We review compliance with ICWA under the harmless error standard. (In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) Notice is sufficient if there was substantial compliance with ICWA. (In re Christopher I. (2003) 106 Cal.App.4th 533, 566.) The object of ICWA notice is to enable a review of tribal records to determine a child's status under ICWA. (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.) The notice "must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian child's name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition. [Citation.]" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) "It is essential to provide the Indian tribe with all available information about the child's ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice . . . must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.]" (Ibid.)
Before the disposition hearing, SSA failed to substantially comply with ICWA. The name of C.J.'s father, through whom Indian status was claimed, was omitted from the ICWA notices, despite SSA's actual knowledge of that information.
This court advised the parties that it intended to augment the record on appeal with documents showing SSA provided proper ICWA notice following the disposition hearing. No party objected to the augmentation of the record, and mother concedes that the issue is now moot.
After this court advised the parties it was considering augmenting the record with this evidence, SSA filed (1) a supplemental letter brief stating it did not object to the augmentation of the record; and (2) a request that this court take judicial notice of, or, in the alternative, take additional evidence of the updated ICWA notices. On this point, and as to these documents, SSA's request is duplicative and unnecessary. The request for judicial notice is denied.
IV.
CONTINUING DISPOSITION HEARING BEYOND REUNIFICATION PERIOD
Mother joins J.K.'s argument. Mother argues that if J.K. is given an opportunity to reunify with J.B. and A.B., her parental rights to those children cannot yet be terminated. (Cal. Rules of Court, rule 5.725(a)(1).)
J.K. argues that the juvenile court erred by allowing the jurisdiction and disposition hearings to continue for more than 10 months, thus depriving J.K. of his due process right to reunification with J.B. and A.B.
J.B. was detained in March 2015. A.B. was detained in August 2015. The jurisdiction hearing began in November 2015, and the juvenile court issued its jurisdiction orders in January 2016. The disposition hearing began in January 2016, and the disposition order was issued in September 2016. A 12-month review hearing for A.B. and an 18-month review hearing for J.B. were scheduled for just 12 days after the disposition order was entered.
"[I]f a minor has been removed from the parents' or guardians' custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance. The facts supporting such a continuance shall be entered upon the minutes of the court. In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319 [(detention hearing)]." (§ 352, subd. (b).)
SSA argues that J.K. forfeited his challenge to the juvenile court's continuance of the disposition hearing beyond the reunification period. Where a parent does not object to continuances of the jurisdiction and disposition hearings, he or she waives the right to claim any harm from the delay. (In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.) "In any case in which the parent, guardian, or minor is represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consent to the continuance." (§ 352, subd. (c).) The time limits of section 352 "are not mandatory in the jurisdictional sense." (In re Richard H., supra, at p. 1362.)
J.K was admittedly not the cause of any of the delays in the disposition hearing. J.K admits he did not object to the many delays in the hearing, and contends it would have been futile to do so. We agree with J.K. that, as a nonoffending parent, his ability to require that the juvenile court deny the continuances sought by mother was limited. Moreover, if the timing obligations imposed by statute were insufficient to compel the timely completion of the jurisdiction and disposition hearings, we cannot see how J.K.'s objections to the continuances would have compelled a different result.
The juvenile court has discretion to continue an 18-month review hearing if "'no reasonable reunification services have ever been offered or provided to a parent.'" (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1466.) "'In exercising its discretion, the juvenile court should consider: the failure to offer or provide reasonable reunification services; the likelihood of success of further reunification services; whether [the child's] need for a prompt resolution of her dependency status outweighs any benefit from further reunification services; and any other relevant factors the parties may bring to the court's attention.'" (Ibid.) J.K. objected to setting the 12-month and 18-month review hearings for A.B. and J.B. less than six months after the disposition hearing. J.B. and A.B.'s counsel admitted that J.K. "hasn't had an opportunity to be provided services or referrals." While setting the review hearings less than six months after the disposition hearing, the juvenile court noted that the case presented "somewhat unique circumstances."
The appellate record reflects that the 18-month and 12-month review hearings for J.B. and A.B. were continued to November 2016. After disposition, J.K.'s participation in his case plan was minimal, although admittedly he had less than two months to do anything. He was not enrolled in or engaging in counseling, a parenting class, or outpatient drug treatment services. J.K. had missed all random drug tests since April 2016. Although reunification services had not been ordered before disposition, SSA sent J.K. referrals for parenting classes beginning in February 2016, and communicated with him regarding counseling, drug treatment, and drug testing. SSA sent J.K. referrals for counseling and outpatient drug treatment one week before the scheduled review hearings.
In proceedings such as these, the juvenile court is forced to walk a fine line between ensuring the due process rights of parents, who are facing the loss of their parental rights, and the children's need for stability. In this case, the court should not have permitted mother to cause delays that interfered with J.K.'s right to services and possible placement of J.B. and A.B. with him, and with the children's need for both stability and familial relationships.
The problem in this case is that the record does not reflect whether J.K.'s rights were, in fact, violated by the delays in the disposition hearing. The record does not show whether the 12-month and 18-month review hearings were continued to allow J.K. to receive services, and what his compliance was after services were ordered. Without such a showing, J.K.'s claim that the lengthy disposition hearing prejudiced him is premature.
SSA filed a request to take judicial notice or, in the alternative, to take additional evidence relating to J.K.'s receipt of postdisposition reunification services. SSA argues that these documents show J.K. has waived the issue of reunification services, or that the issue is moot "as the new findings and orders supersede the challenged ones." The evidence offered by SSA was not before the juvenile court at the time of the disposition order. Further, we cannot consider only the evidence offered by SSA, without providing J.K. the opportunity to offer other evidence regarding the reunification services provided in the period after the disposition hearing. We deny SSA's request. (In re K.M. (2015) 242 Cal.App.4th 450, 455.)
V.
FAILURE TO EVALUATE J.B. AND A.B.'S PATERNAL GRANDPARENTS FOR PLACEMENT
When a child is removed from the physical custody of a parent, preferential consideration must be given to a grandparent (or other designated relative) who requests that the child be placed with him or her. (§ 361.3, subds. (a), (c)(2).) The relative placement preference applies any time a new placement becomes necessary, until parental rights have been terminated. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) The social services agency has an affirmative duty to investigate, identify, and locate appropriate relatives, including but not limited to those relatives suggested by the parent. (§ 309, subd. (e)(1) ["If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents . . . ."]; In re R.T. (2015) 232 Cal.App.4th 1284, 1296 ["Upon removing [the child] from his parents' custody, the agency was required to identify and locate adult relatives for possible placement, including relatives suggested by the parents."].)
After locating the adult relatives, the social services agency is also required to advise them, inter alia, "of the various options to participate in the care and placement of the child and support for the child's family, including any options that may be lost by failing to respond. The notice shall provide information about providing care for the child while the family receives reunification services with the goal of returning the child to the parent or guardian, how to become a resource family, and additional services and support that are available in out-of-home placements." (§ 309, subd. (e)(1)(B).)
A leading treatise on juvenile dependency law states that the burden is on the social services agency to ask the dependent child's relatives if they are willing to take custody; the relatives are not required to first request placement: "The social worker must first contact the relatives to whom preferential consideration is given to see if they wish to have the child placed with them." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.127[3], p. 2-433.)
In determining whether to place a child with relatives, the social worker and the court must consider, among other things, the children's best interests, the parents' wishes, and the safety of the relative's home. (§ 361.3, subd. (a); see In re Antonio G. (2007) 159 Cal.App.4th 369, 377.)
We review the juvenile court's determination regarding relative placement pursuant to section 361.3 for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
SSA recommended that the juvenile court deny reunification services to mother and provide reunification services to J.K. The social worker believed J.K. might be an appropriate placement for J.B. Before the jurisdiction hearing, SSA recommended a home evaluation of J.K. be conducted so that full custody of J.B. could be given to J.K. (At that point, A.B. had not been born.)
J.K. argues that the social worker had a duty to place J.B. and A.B. with his parents, if appropriate, and to facilitate reunification with J.K. Placing J.B and A.B. with J.K.'s parents would provide J.K. with the opportunity to form a strong relationship with his children through visitation, and would provide a stable, long-term home for his children should J.K. fail to reunify.
SSA submitted a request pursuant to the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.) to the State of Arizona to investigate J.K.'s parents' home, where J.K. was living.
J.K. told SSA that the child protective services agency in Arizona evaluated the paternal grandparents' home and "informed hi[m] they were approving the home." Six months later, J.K. asked the social worker to place J.B. and A.B. with the paternal grandparents until he could reunify. The social worker later learned that the ICPC request had been denied because J.K. could not pass a level-one fingerprint clearance, due to outstanding warrants in Washington. At the jurisdiction hearing, the social worker testified that the paternal grandparents were willing to take placement of J.B. and A.B.
SSA argues that because the paternal grandparents "never came forward and requested placement," and were only "willing to have the children placed with J[.K.] in their home," SSA had no obligation to evaluate the paternal grandparents for placement. Given the language of the relevant statutes and the treatises, we must reject SSA's argument. SSA had the obligation to identify and locate potential relatives for placement of J.B. and A.B., not simply to wait for a relative to request placement. The juvenile court had the obligation to ensure SSA met its obligation. SSA was aware of the identity and location of the paternal grandparents. The juvenile court erred in not requiring that SSA continue the evaluation process of the paternal grandparents.
SSA argues that any error was harmless because "there [is no] guarantee that his parents would have been approved on their own." It is a certainty, however, that the paternal grandparents would not be approved for placement of J.B. and A.B. if no evaluation was conducted. It is true that in many cases, placement with relatives tends to result in more frequent and more convenient visitation between the parents and the children, which often facilitates reunification. There is nothing in the record (other than J.K.'s statements) reflecting how far the ICPC review went, and what was discovered about the paternal grandparents. We reverse the disposition orders as to J.B. and A.B. so that SSA may properly consider the paternal grandparents for placement. If the paternal grandparents decline to be considered for placement, or are rejected as a placement option, the disposition orders shall be reinstated.
SSA filed a request to take judicial notice or, in the alternative, to take additional evidence relating to its postdisposition consideration of the paternal grandparents for placement. SSA argues that these documents show J.K.'s argument is moot. The evidence offered by SSA was not before the juvenile court at the time of the disposition order. Further, we cannot consider only the evidence offered by SSA, without providing J.K. the opportunity to offer other evidence regarding SSA's failure to consider the paternal grandparents for placement for almost two years after J.B.'s detention. We deny SSA's request. (In re K.M., supra, 242 Cal.App.4th at p. 455.)
DISPOSITION
The orders in case Nos. DP026050-001 and DP026051-001 are affirmed. The orders in case Nos. DP026052-001 and DP026469-001 are reversed and remanded for further proceedings; if J.B. and A.B.'s paternal grandparents decline placement, or are rejected as a placement option, the orders in case Nos. DP026052-001 and DP026469-001 shall be reinstated.
FYBEL, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.