Opinion
E073324
12-18-2019
In re T.D., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.D. et al., Defendants and Appellants.
Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant, C.D. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, R.V. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1300280) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Christine E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant, C.D. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, R.V. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Father and mother appeal the juvenile court's order terminating their parental rights with respect to their infant son. Their only challenge on appeal is that the court abused its discretion by denying their motion for a continuance to allow father to complete his application for membership in the Chickasaw Nation Tribe so the infant could qualify as an "Indian child" as defined in the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901, et seq.) They seek a reversal of the order terminating their parental rights and remand to give father the opportunity to complete his application and to allow the tribe to intervene on behalf of the infant. We conclude the trial court did not abuse its discretion by putting the child's interest in a permanent placement above allowing father another opportunity to complete his application.
I
FACTS
On November 25, 2018, the Riverside County Department of Public Social Services (department) received an immediate response referral alleging a 1-day-old infant, T.D., and his mother had tested positive for methamphetamine. The baby was born prematurely and placed in the hospital's neonatal intensive care unit. Mother was discharged, but the baby remained under care.
After mother left the hospital, the department social worker was unable to contact the parents. She went to their reported address but found it to be a postal box. She obtained a physical address from the post office but found the residence fenced off and padlocked. A neighbor reported father and his girlfriend had lived there but had been evicted six months earlier. The social worker spoke by phone with both parents on a few occasions, but they refused to meet with her and refused to provide their current address.
On December 7, the hospital released the infant, and the department placed him in foster care. The social worker left the parents a sealed envelope with a notice there would be a court hearing regarding T.D.'s custody on December 11, 2018. The parents came to the hospital to pick up the child at 8:00 p.m., and hospital staff gave them the envelope and advised them the department had removed the child.
The parents have prior child welfare history. In 2013, the department removed the parents' infant son after both parents tested positive for methamphetamine. The court ordered services for mother but not father, terminated mother's services after six months, and terminated the parental rights of both parents. In 2015, the department removed the parents' newborn daughter after the mother and baby tested positive for methamphetamine and father failed to make himself available for an interview. The trial court denied both parents services and terminated parental rights.
The father also has a child welfare history with children from prior relationships. Between 1996 and 1998, he received reunification services for two children by another partner, but the court ultimately granted sole custody to the mother. In a later depencency, the court ordered father to receive services for the same two children, but he made little progress and had his services terminated. Between 2005 and 2006, he was involved in a dependency for two other children. The court denied services to father based on his previous unsuccessful dependency cases and subsequently terminated his parental rights over those children.
On December 10, 2018, the department filed a petition alleging T.D. came within the jurisdiction of the trial court because the parents had failed to provide adequate food, clothing, shelter, or medical care, and failed to provide regular care due to substance abuse. (Welf. & Inst. Code, § 300, subd. (b)(l), unlabeled statutory citations refer to this code.)
On December 11, 2018, the trial court held a detention hearing, which the parents failed to attend. The trial court found the department made a prima facie showing that T.D. came within section 300, subdivision (b), and ordered him detained.
At the hearing, the deputy county counsel said father represented in a prior dependency that his children were eligible for enrollment in a Native American tribe, so the department would need to send ICWA notices. The court found ICWA may apply.
On December 28, 2018, the social worker interviewed both parents. Mother said father is T.D.'s biological father. She denied having any Native American ancestry. Father said he had Chickasaw Nation ancestry. The department mailed notices of child custody proceedings (form ICWA-030) to the Chickasaw Nation of Oklahoma, the Bureau of Indian Affairs, and the Secretary of the Interior, and filed proof of mailing.
On January 10, 2019, the trial court held a contested jurisdictional hearing, which both parents attended. The court found father to be T.D.'s presumed father. Father informed the court he has Native American ancestry through his grandfather, who was an enrolled member of the Chickasaw Nation Tribe. Father filed a Parental Notification of Indian Status form (form ICWA-020) providing the same information. Mother disclaimed knowledge of any Native American ancestry on her side of the family. Both parents denied the allegations of the petition. The court set a contested jurisdictional hearing.
On January 24, 2019, the trial court found the allegations in the first amended petition true and set a contested disposition hearing. The court found the department's ICWA notice was adequate.
On February 7, 2019, the trial court found T.D. to be a dependent of the court, removed physical custody from his parents, and denied reunification services to both parents because their reunification services and parental rights had been terminated in prior dependencies. (§ 361.5, subd. (b)(10) & (11).) The court set a section 366.26 hearing and reduced the parents' supervised visits to once per month.
On February 20, 2019, the department filed a tribal response letter from the Chickasaw Nation stating T.D. did not qualify as an "Indian Child." The tribe's records indicated the paternal grandmother of the minor is an enrolled citizen of the Chickasaw Nation and "[e]ligibility for citizenship in the Chickasaw Nation is based on documented lineage and does not require a specific blood quantum." The letter said father and T.D. "are eligible for citizenship through the lineage of the above referenced citizen. Once either the biological father or the child is enrolled, the child will qualify as an 'Indian Child' and a worker could at that time be assigned once the proper Notice is received. [¶] Please advise the parent or legal custodian to complete the enclosed application for Certificate of Degree of Indian Blood (CDIB) and Chickasaw citizenship application for the child . . . [¶] Although the ICWA does not yet apply in this case, we have a vested interest in the welfare of children who are eligible for citizenship with the Chickasaw Nation." In a footnote to the response letter, the tribe referenced the definition of an Indian child as "any unmarried person under the age of 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe (emphasis added)."
The director of Tribal Government Services of the Chickasaw Nation also sent two letters which said the paternal grandmother was not recognized as a Chickasaw Nation citizen but the paternal grandfather was recognized. Later, the Chickasaw Nation reported paternal grandmother is an enrolled citizen but is now deceased. The tribe indicated both the father and child were eligible for membership.
On March 7, 2019, the social worker contacted the Chickasaw Nation to request membership applications be mailed to the father and the social worker. On May 17, 2019, the social worker completed the application for the child and mailed it to the Chickasaw Nation. As of May 28, 2019, T.D.'s application was pending.
T.D. was deemed a healthy child. He was meeting developmental milestones. The caregivers reported the child adjusted well to their home and they wanted to adopt him. The child formed a secure attachment to his caregivers and appeared comfortable in his new home. The department filed a preliminary adoption assessment report and recommended the court proceed with termination of parental rights and allow the caregivers to adopt the child.
On June 7, 2019, the trial court continued the section 366.26 hearing for approximately one month to allow the tribe to make a decision on T.D.'s eligibility and enrollment.
On June 11, 2019, the social worker spoke to the tribal representative of the Chickasaw Nation about the rules and requirements for registering T.D. into the tribe. The tribal representative told her ' 'there could not be a skip in generation registration, and that the child's father . . . must provide his official birth certificate in order to link the relationship." They said the "child's Chickasaw parent must be issued a CDIB card, or a file must be created for him in order for the child . . . to be processed." They said father hadn't been issued a CDIB card. The father's "original State Certified long form/book copy birth certificate must be received with the child's completed CDIB Application. If the parents' parent has not been issued a CDIB card then the same goes for them, a file has to be created, as we cannot skip a generation, so then their original SCBC-long form/book copy would need to be submitted as well. Once the original birth certificates are available, they will need to be submitted with a completed CDIB/Minor Citizenship Application with the original SCBC-long form/book copy for the child."
The same day, the social worker left a voicemail with father informing him of the registration requirements. On June 12, 2019, the father reported he was working on getting his birth certificate so that he and T.D. could register with the Chickasaw Nation. The social worker checked in again on June 17, 2019 and June 25, 2019, and father reported each time he was still working on obtaining his birth certificate. On June 25, he warned "it will take a while."
On July 9, 2019, the parents each filed changed circumstance petitions under section 388, requesting to vacate the section 366.26 hearing and receive six months of family reunification services. Both parents said they had continued to participate in services and were visiting T.D. The trial court set the petitions for a hearing.
On July 11, 2019, the deputy county counsel and minor's attorney requested a continuance of the section 366.26 hearing to find more information about how to get father's membership accomplished in a timely fashion. Father's attorney said father had contacted the tribe in the past, completed the required information for getting registered, and did not understand why his application was rejected. Father's attorney asked the social worker to assist father in expediting the long-form birth certificate so that he and the minor could be enrolled. The deputy county counsel said a social worker has no ability to expedite the request. The trial court continued the matter for two weeks and directed the department to address in an addendum report "the steps that the Department can take or has taken to assist father in obtaining a long-form birth certificate."
In the addendum report, the social worker said she contacted the father on July 12, 2019 to discuss the steps needed to obtain his long-form birth certificate. The social worker also emailed the father the steps he needed to take for his reference. The department learned it can take up to 15-20 business days from a request to obtain a long-form birth certificate. On July 18, 2019, the Chickasaw Nation tribal representative reported the tribe does not have a specific turnaround timeframe and was currently processing membership applications from a month earlier.
On July 25, 2019, the parents' counsel requested another continuance of the section 366.26 hearing. Both the deputy county counsel and minor's counsel objected. Father's trial counsel said father had mailed his documents to the county records office the day before and should receive the long-form birth certificate within 20 days. His counsel said father's application to the tribe was complete, except for his birth certificate and the paternal grandmother's death certificate, which father believed may be located in a storage unit. Father expected the tribe to receive his application by the end of August 2019. Mother's counsel joined in the request for a continuance.
The deputy county counsel argued a child is an Indian child, as that term is defined by statute, only if the child is a member of a tribe or the child of a member of the tribe. She argued T.D. does not satisfy the definition because his father is not a registered member of the tribe. Though she acknowledged T.D. could become an Indian child if his father successfully registered, she argued it was not in the best interest of the child to delay adoption in anticipation that the father would eventually get around to registering with the tribe.
The trial court found no good cause existed to continue the hearings. "Regarding the request to continue, the Court does not find good cause to continue. We do not have an Indian child at this point." The court also found delaying permanency not in the best interest of the child. The trial court denied the parents' section 388 petitions, finding no change in circumstances, and terminated parental rights.
The court appears to have misspoken: "[T]he Court finds that it would not [sic] be in the best interest of the child to proceed on the issue of determining permanency." Context makes clear the court meant determining permanency would be in the best interest of the child.
On July 30, 2019, both parents filed notices of appeal.
II
ANALYSIS
The parents argue the trial court abused its discretion when it denied their attorneys' requests for a continuance of the section 388 and section 366.26 hearings.
We will reverse an order denying a continuance only if the trial court abused its discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811; In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) A court abuses its discretion when it makes a decision that "is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice." (In re Karla C., at p. 180.)
The standard governing continuances in dependencies is statutory. "Upon request of counsel for the parent . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that a continuance shall not be granted that is contrary to the interest of the minor. In considering the minor's interests, 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. [¶] . . . Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (§ 352, subd. (a)(1) & (2).)
Father's efforts to complete his application were not diligent. When the parents made the final request for continuance, the section 366.26 hearing had already been continued twice, yet father had not made substantial progress on applying for tribal membership. According to his attorney, he had waited until the day before the third scheduled section 366.26 hearing to request his long-form birth certificate, which he needed to obtain before attempting to register as a member. Moreover, again according to his attorney's representations, he still had not determined whether he had possession of the paternal grandmother's death certificate. He knew that document was necessary to complete his application for membership, thought it was in a storage facility, but had apparently done nothing to retrieve or replace it. Father's attorney indicated father hoped he could apply for his own membership by the end of August 2019.
We conclude the trial court did not abuse its discretion when it determined T.D.'s interest in permanency outweighed the interest in waiting to see whether father could complete an application for tribal membership. Given father's history of failing to follow through and the lack of assurances he would do so this time, the court acted reasonably in denying the continuance. This is especially so, in view of the stated intent of the statutory directive to resolve dependency proceedings in a timely manner. (§ 352, subd. (a)(1).)
Mother argues even if neither parent is currently enrolled in a tribe, a child who is not already a member may qualify as an Indian child. This is not accurate. (In re Abbigail A. (2016) 1 Cal.5th 83, 90 ["Congress defined 'Indian child' . . . to mean 'any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) [...] eligible for membership in an Indian tribe and [...] the biological child of a member of an Indian tribe'"] italics added.) As the Chickasaw Nation itself communicated "[e]ligibility for citizenship in the Chickasaw Nation is based on documented lineage" and father must be enrolled before the child may qualify as an Indian child. The tribe specifically stated ICWA did not apply because the child's parent must be registered before the child can be registered. Thus, mother's argument is without merit. T.D. was not an Indian child, and the trial court did not abuse its discretion in denying a continuance to enable father to carry out steps to qualify him when father had already delayed substantially in taking such action.
III
DISPOSITION
We affirm the trial court's order terminating parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
Acting P. J. We concur: FIELDS
J. MENETREZ
J.