Opinion
E083860
11-22-2024
In re C.B., a Person Coming Under the Juvenile Court Law. v. S.S., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Caitlin E. Howard, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ2200195. Dorothy McLaughlin, Judge.
Caitlin E. Howard, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Introduction
S.S. (Mother) appeals from a judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26, respecting Cr.B. (Baby C.). The Riverside County Department of Public Social Services (DPSS or Department) removed Baby C. as a newborn after Mother tested positive for methamphetamines and was declared a dependent based on Mother's use of drugs during pregnancy and her history of substance abuse. Mother and Ch.B. (Father) denied any Native American ancestry, leading to the finding that the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) did not apply.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Over the course of the dependency, Mother failed to participate in any court-ordered programs, and was inconsistent in visiting with Baby C., missing many visits early in the case to accompany the Father out-of-state, resulting in the termination of services at the six-month status review hearing.
After several continuances to identify a maternal great-aunt as the prospective adoptive parent, the hearing to select and implement a permanent plan of adoption was conducted, where Mother appeared telephonically, but sought a continuance. That request was denied, and parental rights were terminated. Mother appealed.
On appeal, Mother challenges (1) the denial of the continuance, and (2) the court's finding that ICWA did not apply. We conditionally reverse.
Background
Mother delivered Baby C. at home in March 2022, at 36 weeks of gestation, and was promptly transported to the hospital where Mother tested positive for methamphetamines. Baby C., who weighed less than 5 pounds, was in the neonatal intensive care unit (NICU) due to withdrawal symptoms and an unstable body temperature. Mother stated she last used drugs one month before delivery, but in other statements she indicated her last use occurred two weeks earlier, and, in the jurisdiction report, she indicated her last use of methamphetamine occurred one week before delivery. Mother had previous child welfare involvement respecting older children who were placed in a guardianship with the maternal grandparents in 2020. Mother had also given birth to twins in 2020, but they died shortly after delivery.
Bother Mother and Father were interviewed by the social worker prior to the filing of the petition, revealing that Father was aware of Mother's pregnancy as well as her drug use, and admitted his own substance abuse problems. Both parents were asked and denied having Native American ancestry. Relating to possible relative placement, maternal aunt, Esmeralda G. was interested in placement of Baby C. although the social worker noted she did not have a viable plan for childcare while at work, so her request for emergency placement was denied. Baby C. was therefore placed in a resource family home upon discharge. There is no indication in the record that the social worker asked Elizabeth G. about possible Native American ancestry. A protective custody warrant was issued on March 4, 2022.
In the detention report, after indicating that emergency placement with Esmeralda G. was denied, there is an indication that when Baby C. was ready for discharge, the Department contacted Esmeralda G. to arrange for her to pick up Baby C. and was informed she was no longer interested because she feared Mother would not follow guidelines and Esmeralda G. did not want problems with the family. A maternal great-aunt, Elisabeth M., also requested placement, but emergency placement was denied. At both the detention and jurisdictional hearings, Elizabeth M. maintained she was still very much interested in emergency placement and explained the circumstances relating to the purported criminal exemption issues (she was the victim of domestic violence), with Mother's counsel pointing out that Elizabeth M. was employed as a caseworker by Loma Linda, which has strict hiring requirements. It was also noted that the Department had not followed up with a reassessment of Elizabeth M. Maternal aunt Marissa D., also appeared at the detention hearing requesting placement.
On March 8, 2022, the Department filed dependency petition alleging that Baby C. was a person described by section 300, subdivision (b)(1), due to Mother's abuse of controlled substances during pregnancy (allegation b-1); her extensive, unresolved abuse of controlled substances which resulted in the legal guardianship of two older children (allegation b-2); Father's failure to protect Baby C. where he knew or had reason to know of Mother's drug use (allegation b-3); and Father's own history of abusing controlled substances and his criminal history for drug related offenses (allegation b-4). The petition also included an allegation that the social worker asked Mother about Baby C.'s Indian status and that Mother gave no reason to believe Baby C. is or may be an Indian child.
On March 9, 2022, the court detained Baby C. At the detention hearing, at least two aunts were present in the courtroom, Marissa D., and Elizabeth M., Mother's counsel requested relative placements with each to be assessed, noting that the earlier rejection of Elizabeth M. was erroneous. During the hearing, the court asked Mother about Native American ancestry and Mother again indicated she had no Indian ancestry and indicated Father did not have any Native American ancestry either. The court made no inquiry of the two aunts in attendance, but found that ICWA did not apply.
The clerk's minutes reflect that there were two maternal aunts present, while, in the reporter's transcript, county counsel indicated there were two paternal aunts in attendance, while Baby C.'s counsel indicated the presence of Marissa D., and Mother's counsel indicated Elizabeth M., was also present. We conclude the reference to two paternal aunts being present was an inadvertent error.
The jurisdiction hearing was conducted on March 30, 2022, at which the Department filed an amended petition with a minor change in wording and Mother submitted on the social workers' reports. Elizabeth M. was present, still seeking reassessment for relative placement, according to Mother's counsel. Again, the court made no oral ICWA inquiry of Elizabeth M. in open court before finding that ICWA does not apply.
The court made a true finding on the first amended petition, declared Baby C. a dependent after finding that he came within the provisions of section 300, subdivision (b)(1), removed custody of Baby C. from his parents and found that ICWA did not apply. The court ordered reunification services and visitation, giving the Department authority to liberalize and increase visits if appropriate.
The report submitted before the six-month status review hearing recommended that services be terminated and a reduction in visits. The report also indicated that the Father denied any Native American ancestry. Mother was still living with her father and her paternal grandfather, although she left the State of California for several weeks to live with the Father, whose job took him to Tennessee, but also indicated that Mother was employed and was receiving training in Riverside County. As a result of this out-of-state sojourn, Mother missed a number of visits with Baby C., as well as many drug testing appointments.
Regarding her participation in court-ordered programs, neither parent had engaged in services, although Mother had been referred to a residential program (A Women's Place program) that would have met her drug treatment, counseling, and parenting education requirements. Because Mother had checked herself out of the residential program after only 31 days, without completing any of the services, she was re-referred to another program, Riverside Substance Abuse Treatment and Prevention, where Mother participated in the intake process but never returned. The Department then referred Mother to another drug treatment program at the MFI facility where Mother showed up for screening, but she tested positive for methamphetamine and never returned.
MFI Recovery Center is a behavioral healthcare organization that provides treatment to adults, adolescents and children with substance use and mental health disorders. (https://mfirecovery.com as of October 18, 2024.)
On September 16, 2022, Mother requested a contested hearing for the section 366.21, subdivision (e), status review. In anticipation of the continued status review hearing, the Department submitted an addendum report, in which the Department continued to recommend termination of reunification services. Mother had returned from Tennessee on September 13, but had not completed any aspect of her court-ordered treatment plan and had not submitted to drug testing. The Department continued to recommend termination of reunification services.
The report also included updated information about the status of resource family approval (RFA) for possible relative placement of Baby C. with the maternal grandmother, Elinor G., and Elizabeth M., indicating that RFA approval was still pending, as requested by the court.
This addendum report was prepared six months after the detention hearing with no progress on the relative assessments.
In connection with other potential relative placements, the report indicated that the social worker had also contacted a maternal great-uncle on Mother's father's side, who was not interested in placement. The report does not indicate whether any of these relatives were asked about possible Native American heritage.
The continued status review hearing took place on October 12, 2022. At the hearing, Elizabeth M. was present, and Mother's counsel inquired about the delay in approving her for placement, noting that the delivered services logs showed no follow up on her efforts to obtain approval. The court found by clear and convincing evidence that both parents had failed to participate and make substantial progress in the court ordered treatment plan, and terminated services for both.
The report prepared and submitted for the upcoming section 366.26 hearing, requested a continuance in order for the Department to find a prospective adoptive parent. The Department reported on Baby C.'s medical and developmental conditions. Baby C. experienced developmental delays, had poor muscle tone, and he wore a helmet for plagiocephaly. Additionally, he required surgery to correct the angulation that caused a congenital torsion of his penis, and to perform circumcision to address phimosis, a tightening of the foreskin preventing full retraction. Physical therapy was approved to improve his muscle tone.
Plagiocephaly is a malformation of the skull, caused by irregular closure of the cranial sutures. (Taber's Cyclopedic Medical Dict. (15th ed. 1985) p. 1309, col. 2.)
The report also indicated Elizabeth M. was still pending RFA approval relating to the criminal exemption, while the maternal great-grandmother, Eleanor M. and maternal uncle were not willing or able to take Baby C. in placement. Regarding visitation, the report indicated Mother had missed another three consecutive visits with Baby C., although she was appropriate when visits did occur. In January 2023, the current caretaker indicated she was unsure about adopting Baby C. and needed to confer with her family. The Department needed additional time to identify prospective adoptive parents and for Elizabeth M. to obtain approval for placement. On February 15, the section 366.26 hearing was continued as requested.
Four months later, an addendum report was filed again requesting approval for the surgical procedures for Baby C. and requested another 120 day extension. However, by this point Elizabeth M. had been approved for relative placement. Baby C. was now more than one year old. On June 20, 2023, the court continued the section 366.26 hearing again to facilitate the preparation of an adoption assessment. Elizabeth M., was present at the hearing, and, when asked, she denied any Native American ancestry.
In August 2023, the Department submitted a post-permanent plan hearing report pursuant to section 366.3, recommending adoption by Elizabeth M. Mother again indicated she was attending counseling with a counselor on campus of the school where she indicated she was studying nursing, but could not name the counselor. She also indicated she was entering a treatment program, but could not provide the name or location of the program. Mother also had missed the last three monthly visits, citing lack of transportation as the reason.
In short, Mother had been unable to provide the Department with confirmation or documentation as to any services she claimed to have completed. In the meantime, Elizabeth M. was engaged in increasingly frequent visitations to build a relationship with and to transition Baby C. to her care, and indicated her willingness to provide permanency for him.
On October 13, 2023, the Department submitted an addendum to the section 366.26 report, requesting another 120-day continuance, to prepare the adoption assessment. In this report, the social worker noted that the original caretaker was not willing or able to provide long term permanency for Baby C. due to being in the process of adopting three other children who were also in her care. For this reason, on August 25, Baby C. was at long last placed with Elizabeth M., and she was referred to the adoptions unit for the preliminary adoption assessment.
On January 31, 2024, a follow-up to the sections 366.26/366.3 reports was submitted, requesting yet another 60 day continuance. The report noted that Baby C. had undergone the recommended medical procedures, which were successful, but still had developmental delays requiring therapy. The report noted that Elizabeth M. was able to meet all Baby C.'s needs and that he was making progress on his developmental milestones. Baby C. appeared well-bonded to Elizabeth M., who indicated her willingness to provide permanence.
At the same time, Mother's visits had been inconsistent, and this had impacted her bond with Baby C. There were reports that Mother had shown up to some visits "with minimal hygiene, at times confused, and with delayed speech." At a visit in September 2023, Mother's speech appeared delayed, and she did not engage with Baby C. using her phone for the majority of the visit. Due to concerns about Mother possibly using drugs, the visits were moved to the child welfare office, where no new problems were noted.
On March 15, 2024, the Department submitted another addendum to the section 366.26 report, recommending that Elizabeth M. be designated the prospective adoptive parent, and that parental rights of the parents be terminated. The preliminary adoption assessment was attached to the report, approving the home of Elizabeth M., in light of the criminal exemption that had been granted due to the dismissal of the 2008 domestic violence incident of which she had been the victim.
On April 15, 2024, the section 366.26 hearing was trailed two days because Mother had not received the Department's latest report. When proceedings resumed on April 17, Mother was initially not present, although she later appeared telephonically and requested a continuance because she lacked transportation to appear in person. The court denied the continuance due to the absence of good cause. Mother objected to adoption citing the existence of a strong and loving bond, requesting that the court adopt a permanent plan of legal guardianship instead of adoption.
The court found that adoption was likely, and that termination of parental rights would not be detrimental to Baby C. due to the lack of a beneficial parent-child relationship, and it terminated parental rights.
On May 9, 2024, Mother appealed.
Discussion
1. Whether the Court Abused its Discretion in Denying Mother's Request to Continue the Section 366.26 Hearing
Mother argues the juvenile court abused its discretion in denying her motion to continue the section 366.26 hearing so that she could be personally present. Mother frames the issue as a violation of her due process rights to be present, present evidence, and to meaningfully consult with counsel at the hearing.
First, we observe that notwithstanding Mother's reference to the due process clause, she relies on section 352 in arguing that the court should have continued the hearing to allow her to be personally present. As we will demonstrate, the denial of the continuance did not impact Mother's due process rights.
Section 352 authorizes the juvenile court to order a continuance of a dependency hearing upon a showing of good cause. (In re V.V. (2010) 188 Cal.App.4th 392, 399.) "Continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the code." (In re David H. (2008) 165 Cal.App.4th 1626, 1635; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) The moving party has the burden to demonstrate good cause for a requested continuance. (See Evid. Code, §§ 500, 550, subd. (b).) "A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion." (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
The notion of structural error flows from Arizona v. Fulminante (1991) 499 U.S. 279, 309-310, where violation of a fundamental federal constitutional right applicable to criminal defendants has been violated. There, the United States Supreme Court distinguished trial errors of federal constitutional dimension from "structural defects in the constitution of the trial mechanism, which defy analysis by 'harmless-error' standards," such as a denial of the right to counsel or a fair and impartial judge. (Id., at p. 309.)
Structural errors in juvenile dependency cases involve basic protections, without which a dependency trial cannot reliably serve its function as a vehicle for determination of whether a child cannot be safely returned to its parent's custody, such that no continuing deprivation of custody, or permanent termination of parental rights, may be regarded as fundamentally fair. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 557.) Due process requirements in the context of child dependency litigation have similarly focused principally on the right to a hearing and the right to notice. (In re B. G. (1974) 11 Cal.3d 679, 689 [failure to give mother notice of hearing was a deprivation of due process].)
However, due process may also be implicated in situations in which there has been a failure to provide parents with a copy of the social worker's report, or an opportunity to examine evidence and cross-examine witnesses, upon which the court will rely in coming to a decision. (In re R.F. (2021) 71 Cal.App.5th 459, 470.) In those situations, the denial of the rights to discovery, present evidence, or cross-examine witnesses may render the proceedings fundamentally unfair. (Ibid.) But without a showing of good cause, there is no "right" to a continuance of a dependency hearing.
Further, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance is thereby unable to offer evidence. (People v. Fuiava (2012) 53 Cal.4th 622, 650, citing People v. Beames (2007) 40 Cal.4th 907, 920-921.)
Mother, citing In re V.V., acknowledges the judicial discretion exercised in addressing such requests, but attempts to have us apply the more favorable standard of prejudice applicable by arguing that the denial of the continuance violated fundamental due process rights. In the context of a due process violation where the error is "structural," per se reversal is required. (In re Christopher L. (2022) 12 Cal.5th 1063, 1073-1074 (Christopher L.).) However, in this case, there was no constitutional violation. Mother had notice and was represented by counsel. We therefore disagree.
We agree that impairment of the fundamental right to parent must comport with the requirements of procedural due process. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) However, procedural due process is not absolute. (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1129.) Once it has been concluded that a due process right exists, we balance factors to decide what process is due, considering (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the dignity interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official; and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (In re Matthew P. (1999) 71 Cal.App.4th 841, 850-851, quoting In re Malinda S. (1990) 51 Cal.3d 368, 383.) However, the "due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court." (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.)
In this regard, we note that the authorities cited by Mother do not support her contention that an error of constitutional dimension occurred requiring automatic reversal because the alleged error in this case did not affect Mother's right to notice, or her ability to be heard. The reviewing court in In re V.V., cited by Mother affirmed the denial of a continuance of the section 366.26 hearing as a proper discharge of the juvenile court's discretion, because substituting counsel at the last minute would have delayed the termination hearing. (In re V.V., supra, 188 Cal.App.4th at p. 399.) This case therefore does not support the argument that a denial of a continuance violated Mother's due process rights.
Mother also cites Christopher L., supra, 12 Cal.5th 1063, in support of her position that the denial of a continuance was structural error. In that case, the question presented was "whether it is structural error, and thus reversible per se, for a juvenile court to proceed with a hearing to determine its jurisdiction over a child and disposition of the dependency petition without an incarcerated parent's presence and without appointing counsel for the parent." (Id. at p. 1069.) However, in that case, while the court did not foreclose the possibility that structural error might be found in cases where the parent lacked notice and was unrepresented by counsel (id., at p. 1075), the court held "that while the provisions for presence and appointment of counsel are important protections for both the parent and the child, the juvenile court's failure to comply does not require reversal per se." (Id., at p. 1069; see In re Marriage of Tara &Robert D. (2024) 99 Cal.App.5th 871, 885.)
In Christopher L., supra, 12 Cal.5th at page 1070, the father was incarcerated and was not represented by counsel at the combined jurisdiction/disposition hearing, but the court proceeded to conduct the hearing in his absence and in the absence of his written waiver of the right to appear. He had received notice of the proceedings, and responded by letter that he wished for the proceedings to be delayed pending his imminent transfer to a California Fire Camp, which letter was attached to the social worker's report. (Id., at p. 1071.) At the hearing, however, the juvenile court apparently failed to read the letter, and refused to continue the hearing, finding (contrary to father's letter) that father had failed to make himself available and had failed to make contact with the Department. (Ibid.) The court then made jurisdictional findings, removed custody from the father, and denied him reunification services. (Ibid.)
However, in that case, "counsel was provided after the jurisdiction and disposition hearing, and could have utilized a statutory mechanism to seek reconsideration of any prior order by the juvenile court," which led to the Supreme Court's conclusion that no structural error had occurred, although it agreed serious errors had occurred. (Christopher L., supra, 12 Cal.5th at p. 1081; see id., at p. 1076.)
Christopher L., does not provide support for Mother's argument that structural error occurred. She had notice of all the hearings and was represented by counsel throughout. The hearing date had been trailed at her request, purportedly so that she could appear in person and provide certificates to the court; but she could have provided the certificates to her counsel or the social worker, given that she was aware she might have transportation problems getting to the court and they would not have relevance at the selection and implementation hearing. At any rate, the oft-postponed section 366.26 hearing was not the appropriate time to submit certificates, where services were terminated at the six-month review hearing (in September 2022), and she made no efforts to rehabilitate herself for the next 19 months. "'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.'" (In re Celine R. (2003) 31 Cal.4th 45, 52.)
Here, Mother had notice of the proceedings, and was represented by counsel throughout the case, who admirably advocated her interests despite Mother's apparent disinterest in establishing or maintaining a parental relationship with Baby C. Although Mother refers to the strength of her bond with Baby C. as reflected in the delivered services logs submitted to the court, those documents were submitted for the six-month review hearing, and that bond had eroded over time due to Mother's inconsistent visits.
Implication of a due process violation is not appropriate here. She was granted reunification services but squandered the opportunity to rehabilitate herself and to mitigate the causes that led to the removal of Baby C. from her care and custody. There was no due process violation.
We are left with section 352, which governs continuances in dependency cases. "Section 352 provides that courts may 'continue any hearing' under the dependency law 'beyond the time limit within which the hearing is otherwise required to be held' (§ 352, subd. (a)(1)), provided there is 'good cause' (id., subd. (a)(2)) and a continuance would not be 'contrary to the interest of the minor' (id., subd. (a)(1)). In evaluating the minor's interest, 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.'" (Michael G. v. Superior Court (2023) 14 Cal.5th 609, 632.)
'"We review the juvenile court's decision to deny a continuance for abuse of discretion.'" (In re D.N. (2020) 56 Cal.App.5th 741, 756, see In re Karla C. (2003) 113 Cal.App.4th 166, 180, citing In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) "'"Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice.'"" (In re D.N., supra, at p. 756, quoting In re D.Y. (2018) 26 Cal.App.5th 1044, 1056.)
Mother argues that the court abused its discretion in denying her a continuance that it deprived her of the ability to be present at the hearing when her ride fell through. Mother overlooks the fact that the matter had already been continued at her request to give her time to review the updated section 366.26 report, and that she was present telephonically for the hearing at which her counsel argued in favor of a permanent plan of legal guardianship instead of adoption. Mother acknowledges in her reply brief that the "inability to secure transportation was not an unanticipated circumstance." Under these circumstances, it was incumbent on Mother to contact the social worker for transportation assistance. Because Mother was present telephonically, her right to be present was not abrogated.
Reversal is not required because Mother was able to participate by telephone and she has not-both in the trial court and on appeal-articulated how she was prejudiced by not being present in person. Mother argues that she had certificates that she wished to bring to the trailed hearing and was deprived of this opportunity by the denial of the continuance. However, if she did have certificates, she should have provided them either to the social worker before services were terminated, or at the originally scheduled section 366.26 hearing, for which she was present, or to her counsel. By the time of the section 366.26 hearing, Mother's progress in reunification programs is of minimal relevance.
Further, the reason given for the earlier requested continuance on April 15, 2024, was to review the addendum to the section 366.26 report, which suggests there were no certificates at that time (the previous day), given the lack of any mention of certificates.
Mother was ably represented by her trial counsel who presented a cogent argument on her behalf, so her right to be heard was not impinged. Testimony that she may have provided if personally present about certificates she might have received in the time that the hearing trailed would have minimal value in light of her persistent failure to participate in services when that participation counted.
Mother also argues that the denial of the continuance resulted in termination of parental rights without a complete picture of the circumstances. Specifically, she points to the delivered service logs (DSL) that were submitted in connection with the six-month review hearing, as evidence of her bond with Baby C. The DSLs contained information that predated the termination of services and were offered in October 2022, more than a year prior to the section 366.26 hearing. The relevance of those logs to the current state of Baby C.'s bond to Mother has since been diminished due to her inconsistent visits.
Mother also argues that the denial of the continuance, which resulted in her telephonic appearance, deprived her of the ability to consult meaningfully with her counsel. The hearing of April 17, 2024, was scheduled to begin at 8:00 a.m. But it did not commence until the afternoon session. Counsel indicated Mother was instructed on April 15th to provide any information she might have had regarding programs she had completed but did not do so. Counsel also indicated that when the case was first called on April 17th, the clerk attempted to contact Mother by phone, but that Mother was unable to log into a telephonic conference for the hearing. Counsel also indicated that both a voicemail and text message had been left for Mother on April 17th without any response. At 3:05 p.m., counsel attempted to call Mother again, without success. She finally called in to counsel's cell phone after the hearing had been called.
Mother's final effort to contact counsel on April 17, 2024 did not warrant a continuance where she had already missed the first call in the morning session and failed to respond to counsel's earlier efforts to contact her. This circumstance also indicates that conferring with counsel was not foremost in Mother's mind on the date of the hearing or the date to which it was trailed. Given Mother's history of inconsistent visits and nonparticipation in rehabilitative services in addition to evidence that her drug problem had never been resolved, her personal presence could not have resulted in a different outcome.
In other words, there was no miscarriage of justice such as would warrant a reversal of the order.
2. Whether Remand is Required due to the Failure to Conduct an Adequate ICWA Inquiry
Mother argues that the case must be conditionally reversed to the inadequate inquiry of relatives regarding possible Native American heritage. She asserts that no extended family members were interviewed. While this statement is not completely correct (Elizabeth M. was asked in open court and denied any Native American ancestry), the record indicates that the maternal grandmother, maternal grandfather, and maternal great-grandfather, were available, yet the reports do not reflect that any of them were asked about possible Native American ancestry. As to Father's relatives, the record does not reflect that any were interviewed. Although Father himself denied any Indian heritage, as did Mother, we conditionally reverse with directions to conduct further inquiry of Father's relatives and maternal grandparents.
The Department argues that no extended ICWA inquiry was required because Baby C. was detained following a temporary removal pursuant to a protective custody warrant and because the parent's denial of Indian ancestry left the Department and the court with "no reason to believe" Baby C. was an Indian child. We disagree.
ICWA reflects a congressional determination to protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards that a state court, except in emergencies, must follow before removing an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016) 1 Cal.5th 1, 7-8 (Isaiah W.).) In any "proceeding for the foster care placement of, or termination of parental rights to, an Indian child," the Indian custodian and the Indian child's tribe have the right to intervene and may petition the court to invalidate any foster care placement of an Indian child made in violation of ICWA. (25 U.S.C., §§ 1911, subd. (c), 1914; see § 224, subd. (e).)
To facilitate the congressional intent, under California law, the juvenile courts and the child protective agencies, "(but not parents)[, have] an 'affirmative and continuing duty to inquire' whether a child in the dependency proceeding 'is or may be an Indian child.'" (In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742, quoting § 224.2, subd. (a).) "That duty to inquire begins with [the] initial contact [citation] and obligates the juvenile court and child protective agencies to ask all relevant involved individuals whether the child may be an Indian child." (In re T.G. (2020) 58 Cal.App.5th 275, 290, citing § 224.2, subds. (a)-(c).)
"This continuing duty can be divided into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to provide formal ICWA notice." (In re D.F. (2020) 55 Cal.App.5th 558, 566 (D.F.).) "The duty to inquire whether a child is an Indian child begins with 'the initial contact,' i.e., when the referring party reports child abuse or neglect that jump-starts [the Department's] investigation. (§224.2, subd. (a).) [The Department's] initial duty to inquire includes asking the child, parents, legal guardian, extended family members, and others who have an interest in the child whether the child is, or may be, an Indian child." (Id., at p. 566.)
"Similarly, the juvenile court must inquire at each parent's first appearance whether he or she 'knows or has reason to know that the child is an Indian child.' [Citation.] The juvenile court must also require each parent to complete Judicial Council form ICWA-020, Parental Notification of Indian Status. (Cal. Rules of Court, rule 5.481(a)(2)(C).) The parties are instructed to inform the court 'if they subsequently receive information that provides reason to know the child is an Indian child.'" (D.F., supra, 55 Cal.App.5th at p. 566, fn. omitted.)
"Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the Agency 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.'" In re D.S. (2020) 46 Cal.App.5th 1041, 1052; D.F., supra, 55 Cal.App.5th at p. 566.) "Third, if that further inquiry results in a reason to know the child is an Indian child, then the formal notice requirements of section 224.3 apply." (In re D.S., supra, at p. 1052, italics in original; D.F., at p. 568.)
We generally review ICWA findings for substantial evidence. (In re M.M. (2022) 81 Cal.App.5th 61, 70; In re A.M. (2020) 47 Cal.App.5th 303, 314.) However, where the material facts at issue are undisputed, ""'we review independently whether ICWA requirements have been satisfied.'"" (In re J.K. (2022) 83 Cal.App.5th 498, 504, quoting In re J.L. (2017) 10 Cal.App.5th 913, 918.)
Section 224.2, subdivision (a), expressly states the duty to inquire is not limited to asking the reporting party if they have information that the child may be an Indian child. The initial contact refers to the first in-person contact between DPSS and the family following a referral to investigate for child abuse or neglect. (See Cal. Dept. of Social Services, Child Welfare Services Manual of Policies and Procedures, §§ 31-125.1, 31127.1 [describing the social worker's investigatory duties of in-person contact to assess risk upon receiving a referral for suspected abuse or neglect].)
Section 224.2, subdivision (b), requires the Department to ask extended relatives where "a child is placed into the temporary custody of a county welfare department pursuant to Section 306." Section 306, subdivision (b), requires departmental inquiry into Indian heritage pursuant to section 224.2, "[u]pon receiving temporary custody of a child." The statute does not limit this duty of inquiry to children "received" by any particular means.
"Under both ICWA and California law, '"extended family member[s]"' include the child's 'grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.'" (In re D.S., supra, 46 Cal.App.5th at p. 1053; see In re Dominick D. (2022) 82 Cal.App.5th 560, 567.) Upon each party's first appearance in a dependency proceeding, the juvenile court must ask each participant "whether the participant knows or has reason to know that the child is an Indian child" (§ 224.2, subd. (c)), and "[o]rder the parent ... to complete [an ICWA-020 form]." (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Removal of a child from his or her parents-by any means-is the true triggering event, because ICWA is not involved in juvenile dependency proceedings where a child remains placed with his parent or parents. The language of ICWA specifically states that it applies when a child is placed in foster care or an adoptive placement: "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs. (25 U.S.C. § 1902, italics added.)
Not every child is removed at the time of "initial contact" by the social services agency. A peace officer may take a child or children into temporary custody without a warrant, based on probable cause to believe the child is a person coming under the definition of a dependent child, or when the child is in apparent need of protection from harm. (See § 305.) Once taken into temporary custody, the peace officer must try to contact the parent or guardian, and, if the parent or guardian cannot be contacted, the peace officer shall notify a social worker in the county welfare department to assume custody of the child. (§ 305, subd. (a).) When delivered to the social services agency, a social worker must "[r]eceive and maintain, pending investigation, temporary custody of a child who is described in Section 300, and who has been delivered by a peace officer." (§ 306, subd. (a)(1).)
An initial contact may also occur when the social services agency receives a referral for suspected abuse or neglect, investigates the referral and determines "that the child has an immediate need for medical care or is in immediate danger of physical or sexual abuse or the physical environment poses an immediate threat to the child's health or safety." (§ 306, subd. (a)(2).) In such situations, a social worker may take the child into custody and detain him or her without a warrant. (Ibid.)
A child may also be taken into temporary custody by means of a protective custody warrant, where there is no emergency situation requiring immediate removal by the Department at the time of the initial contact. (§ 340.) In such situations, the law enforcement officer removes the child in execution of the warrant, and delivers the child to the social worker. (§ 340, subd. (c).) In all of these situations, the child is "received" by the agency, and "[u]pon receiving temporary custody of a child, the county welfare department shall inquire pursuant to Section 224.2, whether the child is an Indian child." (§ 306, subd. (b).)
The Legislature recently amended section 224.2, subdivision (b), effective September 27, 2024, to clarify that the duty of inquiry as to extended relatives applies equally to children removed from their parents by way of a protective custody warrant. (See Assem. Bill No. 81 (Stats. 2024, ch. 656, § 3, eff. Sept. 27, 2024.) This amendment resolves the split of authority regarding when the duty to inquire of extended relatives is triggered. (See In re Robert F. (2023) 90 Cal.App.5th 492, 497, 500-501, review granted July 26, 2023, S279743, relying upon In re Adrian L. (2022) 86 Cal.App.5th 342, 364 &fn. 16 (conc. opn. of Kelley, J.), overruled in part by In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn. 18 (Dezi C.); see In re Ja.O. (2023) 91 Cal.App.5th 672, 677-678, review granted July 26, 2023, S280572.)
In light of the statutory amendment, we do not need to take a position respecting earlier interpretations. Nevertheless, the Department's interpretation of section 224.2, subdivision (b), would frustrate the intent of the legislative clarification, which is to insure a continuing, full, and complete inquiry respecting possible Native American heritage of children removed from parents' custody, contrary to the Department's suggestion. It is a necessary function because of '"the commonsense understanding that, over time, Indian families, particularly those living in major urban centers . . . may well have lost the ability to convey accurate information regarding their tribal status."' (In re E.W. (2023) 91 Cal.App.5th 314, 322, citing In re T.G. (2020) 58 Cal.App.5th 275, 295.)
We asked the parties to submit letter briefs upon learning of the passage of the statutory amendment. In its letter brief, the Department argues that there is nothing to indicate that the amendment is retroactive. To the contrary, section 36 of Assembly Bill No. 81, expressly states in relevant part, "This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
"Indian children continue to be disproportionately represented in California's child welfare system and new research shows that tribes being involved in dependency cases can reduce a child's time in state care. These amendments are urgently needed to reinforce the state's commitment to protecting essential tribal relations by recognizing a tribe's right to protect the health, safety, and welfare of its citizens." (Assem. Bill No. 81 (Stats. 2024, ch. 656, § 36.) We therefore apply the amendment to this case as intended.
Thus, while neither parent claimed any Indian ancestry at the detention hearing, this did not relieve the Department of its duty to inquiry into possible Indian ancestry as "parents may not know their possible relationship with or connection to an Indian tribe." (In re Y.W. (2021) 70 Cal.App.5th 542, 554; see In re Breanna S. (2017) 8 Cal.App.5th 636, 650, disapproved on a different point by In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6.)
Here, the record shows that the Department inquired of Mother and Father when it intervened after Baby C.'s birth, and the court conducted an open court inquiry of both parents and Elizabeth M. However, the record does not show any attempt to inquire of the maternal grandmother, maternal grandfather or great-grandfather, despite the Department's knowledge that Mother was residing with her father and her grandfather and its contact with the maternal grandmother regarding possible relative placement of Baby C.
Further, the Department made no inquiry of Father's relatives, although the social worker had occasional telephone contact with Father and could have obtained information about his parents, including contact information, to conduct an inquiry.
"When there is an inadequate inquiry and the record is underdeveloped, it is impossible for reviewing courts to assess prejudice because we simply do not know what additional information will be revealed from an adequate inquiry. We therefore hold that an inadequate Cal-ICWA inquiry requires conditional reversal of the juvenile court's order terminating parental rights with directions to the agency to conduct an adequate inquiry, supported by record documentation." (Dezi C., supra, 16 Cal.5th at p. 1125.)
We must therefore conditionally reverse the judgment.
Disposition
The judgment terminating Mother's parental rights is conditionally reversed. On remand, the juvenile court shall order DPSS to comply with its duty of initial inquiry under subdivision (b) of section 224.2 and, if applicable, the duty of further inquiry (§ 224.2, subd. (e)) and the duty to provide notice to the proper tribes (25 U.S.C. § 1912(a); § 224.3). If the court determines that ICWA does not apply, then the court shall reinstate the order terminating parental rights. If the court determines that ICWA applies, then it shall proceed in conformity with ICWA and related California law.
We concur: MILLER J., RAPHAEL J.