Opinion
D071771
09-18-2017
In re D.D. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANDREW D. et al., Defendants and Appellants.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant A.D. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant J.W. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. EJ4016A-B) APPEALS from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Reversed and remanded with directions. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant A.D. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant J.W. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
J.W. (Mother) and Andrew D. (Father) appeal from orders of the juvenile court on juvenile dependency petitions filed by the San Diego County Health and Human Services Agency (the Agency) on behalf of their minor children, D.D. (born 2012) and A.D. (born 2015). Father contends the trial court erred in denying his motion to vacate the jurisdictional and dispositional findings because he was denied his due process and statutory rights to notice of the proceedings. Mother contends the Agency failed to make a proper inquiry of the children's Indian ancestry under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). We reverse the jurisdictional orders with directions.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2015, Mother went into preterm labor and gave birth to A.D. who weighed under four pounds. While A.D. had negative toxicology screens, Mother admitted the she used crack cocaine, methamphetamine, and alcohol two days after she gave birth. Mother reported that she had been diagnosed with schizoaffective and bipolar disorders and had been off her medications for four months. Father took medications for bipolar disorder and depression.
The parents visited A.D. at the hospital bringing their son D.D. with them. A hospital social worker expressed concern that the parents were unable to care for A.D.'s numerous health issues and noted that the parents had low frustration and tolerance for D.D. The Agency offered "out-of-home" voluntary services, placed D.D. with the maternal grandmother and A.D. in a confidential foster home.
On February 26, 2016, the Agency filed Welfare and Institutions Code section 300 petitions on behalf of the children because the voluntary services contract was due to expire, the parents were unable to care for the children, and they had not made progress in their case plans. Neither parent attended the detention hearing. The court noted that the parents' whereabouts were unknown and ordered that search efforts be undertaken for them. At the April 28 jurisdictional hearing, which the parents did not attend, the juvenile court made a true finding on the petitions.
Undesignated date references are to 2016.
Undesignated statutory references are to the Welfare and Institutions Code.
On October 26, Father made his first appearance at the six-month review hearing. The court ordered that reunification services be provided to Father and granted him liberal supervised visitation. An addendum report dated December 15 indicated that Father had one supervised visit with the children. At the contested six-month review hearing on January 5, 2017, Mother made her first appearance in the case and indicated that she might have Indian ancestry. The court continued the hearing due to the ICWA issue.
At the February 15, 2017 trial, Father moved to vacate the juvenile court's findings and orders due to the Agency's failure to provide him with required notice of the proceedings. The court denied the motion. It placed both children in a relative's home, terminated services for Mother, ordered continuing services for Father, and set the matter for a 12-month review hearing. The parents timely appealed.
DISCUSSION
I. FATHER'S APPEAL
Father contends that the trial court erred in denying his motion to vacate the jurisdictional and dispositional findings because he was denied his rights to due process and statutory notice of the dependency proceedings. As a result, he has been denied his full reunification period. The Agency submits that although its search for Father and notice to him was defective, Father reasonably should have known of the dependency case given his involvement in the voluntary case and his interaction with the maternal grandmother and Mother who had notice of the proceedings. The Agency also argues that the errors in searching for and noticing Father did not prejudice him because it is highly unlikely that written notice addressed to him sent to the grandmother's home would have triggered his attendance in court or prompted his entry into reunification services any earlier in this case.
The Agency notes that Father raised the lack of notice issue under Welfare and Institutions Code sections 291 and 385, and Code of Civil Procedure section 473. A motion to set aside under Code of Civil Procedure section 473 is not a proper vehicle to raise the noticing issue. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1018-1019 (David B.).) A parent may use a Welfare and Institutions Code section 388 petition to raise a due process notice error. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481.) Under Welfare and Institutions Code section 388, the burden is on the parent to show changed circumstances or new evidence, and that the best interests of the child will be promoted by a modification of the prior order. (Ibid.)
The trial court recognized this issue at the beginning of hearing, stating "Father filed a motion to vacate today pursuant to [Code of Civil Procedure section] 473 which is what the case law suggests . . . comes by way of a [Welfare and Institutions Code section] 388." The Agency did not object at the hearing to the vehicle used by Father to raise the noticing issue and we deem the issue forfeited. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
"Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) When a child is taken into protective custody, the social worker, police officer, or probation officer taking the child must immediately inform the parent "that the minor has been taken into protective custody and that a written statement is available which explains the parent's . . . procedural rights and the preliminary stages of the dependency investigation and hearing." (§ 307.4, subd. (a).) The written statement must inform the parent of the conditions under which the child will be released, the hearings which may be required, how to obtain information about the case, the right to counsel, the privilege against self-incrimination, and appeal rights. (Id., subd. (a)(1) & (2).)
When a petition to detain a child is filed, the social worker is required to give written or oral notice of the detention hearing to a father (§ 290.1, subds. (a)(2), (e)) and the clerk of the juvenile court is required to issue notice by attaching a copy of the petition and causing it to be served on the parents. (§ 290.2, subd. (a)(1) & (2).) The Agency must act diligently to locate a missing parent. (In re Justice P. (2004) 123 Cal.App.4th 181, 188 (Justice P.).) Reasonable diligence " 'denotes a thorough, systematic investigation and inquiry conducted in good faith[.]' " (David B., supra, 21 Cal.App.4th at p. 1016.) Unless there is no attempt to serve notice on a parent, in which case the error is reversible per se, notice errors do not automatically require reversal but are reviewed to determine whether the error is harmless beyond a reasonable doubt. (In re J.H. (2007) 158 Cal.App.4th 174, 182-183 (J.H.).) We review an alleged due process violation under the de novo standard of review. (Id. at p. 183 [constitutional issues reviewed de novo].)
In November 2015, the parents agreed to participate in an out-of-home voluntary services case. D.D. has been out of the parents' care since November 2015 and A.D. has been out of their care since December 2015. The Agency lost contact with Father in December 2015. Before the voluntary plan expired in February 2016, the social worker reported that the parents failed to make progress on their case plan, did not consistently visit the children, and that their whereabouts were unknown.
The Agency filed the section 300 petitions on February 26. After the petitions were filed, the clerk of the court sent copies of the minute orders to Mother at the grandmother's address. The Agency concedes there is no evidence it sent written notice of the jurisdictional hearing to Father at the grandmother's address, his last known address. The Agency also notes that section 291, subdivision (a)(7) requires notice to a relative when the address of a parent is unknown, but there is no evidence this was done.
The jurisdictional report dated March 22 included an unexecuted "Declaration of Due Diligence" documenting the efforts undertaken on March 16 to locate Father. Several items listed showed "[r]esults [p]ending" and unsuccessful telephone calls at six different telephone numbers. The jurisdictional report stated that the social worker provided telephone notice to Father on March 16, but then inconsistently stated that Father has been unavailable.
At the hearing on Father's motion to vacate, the social worker testified that she was assigned to the case since December 2015, but never sent written notice to Father regarding any scheduled court hearing. She acknowledged that she was not able to reach Father after the section 300 petitions were filed, she did not record the days that she went to the grandmother's home, and she did not leave any documents for him at the home. The jurisdictional hearing occurred on April 28.
On October 26, Father made his first appearance at the six-month review hearing where he provided the grandmother's address as his mailing address. Father learned of the October 26 court date from the grandmother. At the February 2017 trial, Father moved to vacate all the juvenile court's findings and orders due to the Agency's failure to provide him with the required notice of the proceedings.
It is undisputed that the Agency did not conduct a proper search for Father and that its notice to him was defective. Where, as here, there is no attempt to serve notice on a parent the error is generally reversible per se. (J.H., supra, 158 Cal.App.4th at pp. 182-183.) However, even assuming the Agency had left notice at the grandmother's address, the record does not suggest Father would have received this notice because the grandmother did not know his whereabouts and thus could not inform him about any documents at her home addressed to him. Accordingly, the statutorily required notice would have been another document unseen by Father. Nonetheless, the Agency also failed to conduct a proper search for Father and, based on the information in the record, we cannot determine whether the Agency could have located him had it undertaken a proper search.
This action was preceded by an out-of-home voluntary services case with D.D. placed with the maternal grandmother and A.D. in a foster home. Father never received notice of the commencement of these proceedings. Had Father received a copy of the dependency petitions he would have been informed of the next hearing date and received the following advisements: "Your parental rights may be permanently terminated. To protect your rights, you must appear in Court and answer the petition. [¶] You, as the child, parent, or guardian, are entitled to have an attorney at the hearing. If you cannot afford an attorney, you may request that the court appoint one at the next hearing." There is no evidence in the record showing Father ever received these advisements. Additionally, there is nothing in the record showing Father has ever been involved in a dependency proceeding, or that he knew of the grave consequences for not participating in dependency proceedings.
We reject the Agency's argument that, because Father was in contact with Mother, he necessarily knew about these proceedings and his legal rights from Mother. The Agency has a constitutional and a statutory obligation to advise Father of these proceedings and his legal rights, obligations not shared by Mother. Moreover, Mother has mental health issues and was absent from these proceedings until January 2017. Similarly, it appears that grandmother could not have informed Father of these proceedings because she did not know his whereabouts until he contacted her and learned about the October 26 six-month review hearing. Father made his first appearance at that hearing and has since appeared for hearings held on December 15, January 5, 2017, and February 15, 2017.
We acknowledge that an important consideration in this appeal is whether the best interests of the children would be promoted by reversing the jurisdictional orders. This calls for a case-by-case analysis. (Justice P., supra, 123 Cal.App.4th at p. 191.) Here, the children were with the maternal grandmother, with the possibility of moving the children to the maternal aunt, subject to a home inspection. This is not a situation where the children were in a prospective adoptive home. Additionally, taking this case back to the jurisdictional hearing gives Father an additional six months of services. While an additional six months of uncertainty are not ideal for the children, there would be no significant harm to them by allowing Father the opportunity to participate.
As another court explained, "the failure to give notice carries such grave consequences in the dependency court, where parent-child ties may be severed forever. Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned. Where, as here, the [A]gency has not even attempted to advise a parent of proceedings that affect her fundamental rights as a parent, we will not accept an argument that [Agency's] failure to give notice was harmless. We reject the contention that we can ignore the lack of notice because the parent was unworthy and, thus, was not prejudiced by lack of notice. We also reject the assertion that the minors' interest in stability trumps the parent's constitutional rights. [¶] As we stated in In re Anna M. (1997) 54 Cal.App.4th 463, '[T]he dependency system as a whole [is] ill-served by . . . defective procedures.' (Id. at p. 467.)" (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.) The DeJohn B. court added, "[J]ustice is not served by sacrificing a parent's due process rights to a minor's need for stability. Loath as we are to undo the permanency plan, it must be done." (Ibid.)
It is impossible to determine whether the Agency's failure to attempt to locate Father was harmless as his participation in these proceedings after he learned of them suggests he might not have been absent had he received the required advisements. On this record, we conclude that the Agency's failure to attempt to locate Father and provide him with proper notice of the dependency proceedings requires reversal of the jurisdictional orders and all subsequent orders.
II. MOTHER'S APPEAL
Mother seeks reversal of the jurisdictional and dispositional findings based on improper ICWA notice. She complains that the record did not contain the notices sent by the Agency; thus, it is unknown what information regarding Mother and her relatives was contained in the notices. She also complains that there was no evidence the social worker interviewed any extended family members regarding Indian heritage. The Agency asserts that it accomplished the required noticing, but did not file with the juvenile court the noticing forms showing parental information. The Agency agrees ICWA needs to be addressed in the juvenile court, but argues this court cannot review whether notice was proper because there is no evidence in the record to review and the juvenile court did not make a final ICWA determination. It contends the issue of ICWA compliance is not yet ripe for review and asserts we should dismiss Mother's appeal.
If a state court has reason to know an Indian child is involved in a case involving custody or termination of parental rights, ICWA requires the party seeking termination to notify the Indian child's tribe of the pending proceedings and the right to intervene. (25 U.S.C. § 1912(a).) Circumstances that may give the court or the Agency reason to believe that a child is an Indian child include a party's statement, or the provision of information suggesting that the child is an Indian child. (§ 224.3, subd. (b)(1); Cal. Rules of Court, rule 5.481(a)(5)(A).)
Undesignated rule references are to the California Rules of Court.
If the Agency has reason to know that an Indian child may be involved in dependency proceedings, it must take various steps to determine whether the child has Native American ancestry, including interviewing extended family members. (Rule 5.481(a)(4)(A).) " '[E]xtended family member' " includes a 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).) If the inquiry leads the social worker or the court to know or have reason to know an Indian child is involved, the social worker must provide notice to the tribe and the Bureau of Indian Affairs. (§§ 224.3, subd. (d), 224.2, subd. (a).) More than a "bare suggestion" of Native American ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520.)
Proper notice must include, if known: (1) the child's name, birthplace, and birth date; (2) the name of the tribe in which the child 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. (§ 224.2, subd. (a)(5).) "To enable the juvenile court to review whether sufficient information was supplied" (In re Francisco W. (2006) 139 Cal.App.4th 695, 703) the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (Guidelines) provide that "[t]he original or a copy of each notice sent under this section should be filed with the court together with any return receipts or other proof of service." (Guidelines, 80 Fed.Reg. 10154 (Feb. 25, 2015).)
The juvenile court has an affirmative and continuing duty to inquire into a child's Indian status and to ensure ICWA notice of each hearing is provided. (§ 224.3, subd. (a); In re Isaiah W. (2016) 1 Cal.5th 1, 10-11.) "[A]ny finding of ICWA's inapplicability before proper and adequate ICWA notice has been given is not conclusive and does not relieve the court of its continuing duty under section 224.3[, subdivision ](a) to inquire into a child's Indian status in all dependency proceedings." (In re Isaiah W., at p. 11.)
Here, Mother initially denied Indian heritage. Father claimed that he had Blackfoot and Apache heritage. On March 22, the court deferred ICWA findings and directed the Agency to proceed with ICWA notices based upon the information it had from Father. On April 8, the Agency sent notices to the Blackfeet and Apache Tribes, the Bureau of Indian Affairs, and the Secretary of the Interior. The notices contained the names and birth dates of the parents and maternal grandmother. On April 28, the juvenile court found the Agency was in substantial compliance with ICWA noticing and that the children were not Indian children. The court stated that its finding was subject to additional evidence being brought forward and it would set a special hearing if necessary to address ICWA.
On October 26, the court noted that the previous ICWA finding might be based upon incomplete information and ordered Father to complete the appropriate paperwork. The juvenile court stated that new notice would need to be provided "if there is anything different at all less than a comma or a period." The Agency represented in an addendum report that it had sent a second set of ICWA notices to the eight Apache Tribes and the Blackfeet Tribe of Montana in November 2016. Although proof of mailing is in the record, the actual notices showing what information the Agency provided the tribes were apparently never filed with the juvenile court. Nonetheless, the Agency received letters from four tribes indicating that the children were not Indian children.
Mother made her first appearance at the January 5, 2017 contested six-month hearing. She notified the court that she believed she had Seminole Indian heritage though her great-grandmother. The court ordered Mother to fill out the ICWA forms and the Agency to provide notices under ICWA. The court continued the contested hearing to perfect ICWA notice. At the February 15, 2017 hearing from which the parents appeal, the Agency lodged a packet of signed return mail receipts to the Seminole Tribe of Florida, the Seminole Nation of Oklahoma, and the Bureau of Indian Affairs regarding Mother's claim of Seminole heritage. This lodgment is not part of the record on appeal.
We disagree with the Agency that Mother's appeal must be dismissed. ICWA notice requirements are strictly construed. (In re Karla C. (2003) 113 Cal.App.4th 166, 174.) The record shows that the Agency did not file the actual notice resent by the Agency based on information provided by Father, the notice purportedly sent, or return receipts and responses received based on the information provided by Mother as required by the Guidelines. The juvenile court must review these notices to determine whether they contain enough identifying information to be meaningful. (In re Karla C., at p. 175.) If the notices do not contain sufficient information to be meaningful, the Agency must conduct further inquiry with extended family members regarding possible Indian heritage. (§ 224.3, subd. (c); rule 5.481(a)(4).)
DISPOSITION
The jurisdictional orders and all subsequent orders are reversed and the matter is remanded to the dependency court with directions to: (1) conduct those proceedings anew after providing proper notice to Father and an opportunity for him to be heard; and (2) order the Agency to comply with the notice provisions of ICWA, the relevant case law interpreting ICWA and the views expressed in this opinion. The Agency must file all required documentation with the juvenile court for the court's inspection.
NARES, Acting P. J. WE CONCUR: AARON, J. DATO, J.