Opinion
C098830
04-18-2024
In re B.L., a Person Coming Under the Juvenile Court Law. v. E.L., Defendant and Appellant. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. JD238244
KRAUSE, J.
Appellant E.L., father of minor B.L., appeals from the juvenile court's orders terminating parental rights and freeing the minor for adoption. (Welf. &Inst. Code, §§ 366.26, 395.) Father argues that the juvenile court: (1) erred in finding that the minor was adoptable because the finding was not supported by substantial evidence; (2) erred in finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply because the initial ICWA inquiry by the Sacramento County Department of Child, Family, and Adult Services (the Department) and the juvenile court was insufficient; and (3) abused its discretion in denying a request for a continuance of the selection and implementation hearing pursuant to section 366.26 when father left the hearing. We will affirm.
Undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I
Initial Dependency Proceedings
We initially give a general recitation of the factual and procedural posture of the case. Facts specific to the adoptability and ICWA issues are summarized in the discussion infra.
On April 14, 2021, the Department of Child, and Family Services of Los Angeles County (L.A. Department) filed a petition under section 300, subdivision (b)(1) alleging that the five-year-old minor, B.L., and his elder siblings (who are not subjects of this appeal), G.C., F.C., and C.C., were detained after father was incarcerated. The petition alleged that father was arrested on April 12, 2021, had a history of substance abuse, and failed to make an appropriate plan for the children's ongoing care. The detention report noted that father was charged with attempted murder in Sacramento. Father had completed individual counseling, domestic violence classes, parenting classes, and outpatient treatment for a previous dependency case in 2017. At the detention hearing, minor and his siblings were detained.
II
Jurisdiction and Disposition
In the L.A. Department's May 18, 2021, combined jurisdiction and disposition report, it was reported that the minor and his siblings had been previous dependents of the court after removal by the Bakersfield Police Department in 2017, and jurisdiction was terminated in October 2018, with sole legal and physical custody to father. Mother's whereabouts were unknown. On June 17, 2021, the Los Angeles juvenile court sustained the petition as pled, and the minor and his siblings were adjudged dependents of the court and ordered placed in suitable placement. Family reunification services were granted to father and denied to mother. The paternal step-grandmother, who had been a primary caretaker for the children prior to father's incarceration, was authorized to have monitored visitation with the minor, and discretion was given to place the children with her.
Shortly after the jurisdiction and disposition hearing on July 1, 2021, a motion to transfer the case out of Los Angeles County, based on father's incarceration in Sacramento County, was granted. The motion stated that the status of the ICWA was pending. The transfer-in was accepted in Sacramento County on August 13, 2021. The transfer-in hearing report noted the children had all been placed together; however, F.C. had to be moved because the foster parent could not handle his behaviors. The social worker met with father on September 1, 2021, and informed him of the services available to him in jail; he had not started any services and stated he would be willing to participate once he was released. It was agreed that the children would stay in Los Angeles County until the paternal step-grandmother's Resource Family Approval (RFA) application was approved. At the transfer-in hearing, the Department requested a continuance to see whether the paternal step-grandmother could pass the RFA study, and the juvenile court set six-month review and relative placement hearings.
III
Status Review
The Department's October 12, 2021, progress report stated that the social worker had deemed in-person visitation with father inappropriate because the children were still in Los Angeles County.
The six-month review hearing took place on December 14, 2021. The minor remained in a confidential foster home with his siblings, C.C. and G.C., where they had been placed since detention. While he was developmentally on track, the minor had begun exhibiting concerning behaviors which increased after talking to F.C. and the paternal step-grandmother over the phone: He was destructive to property and clothing items and had recently cut his own hair, and his Wraparound services team recommended additional therapy and behavioral services. The paternal step-grandmother did not complete RFA approval, and the caregiver was willing to adopt the minor, C.C., and G.C. The Department opined that father was legally entitled to more services, and services were continued.
The Department's May 31, 2022, 12-month status review report reflected that the minor was healthy, active in youth sports, and still placed with C.C. and G.C. He had become more needy at home, had an increase in tantrums and frequently desired not to go to school, which his Wraparound services team was addressing. It was reported that all the children's challenging behaviors exhibited after phone calls with F.C. and in person visits with the paternal step-grandmother had decreased since services had been implemented. The minor had not been enrolled in school prior to juvenile court intervention and needed services outside of the classroom for reading and mathematics. Mother's whereabouts remained unknown, and father remained incarcerated, pending trial. The caregiver was still interested in adopting the minor, G.C., and C.C., if the father was unable to reunify. The recommendation for the minor was adoption. The Department recommended termination of services and setting a selection and implementation hearing under section 366.26.
In an August 9, 2022, addendum report, the Department stated that the caregiver for the minor and his siblings could no longer continue to care for them all but was willing to continue caring for the minor alone if a placement could not be found for them all. The minor remained with the original caregiver, and C.C. and G.C. were moved. The minor reported he was happy to stay in the home but missed his siblings.
On September 20, 2022, following a contested hearing, the juvenile court terminated father's services and set a selection and implementation hearing pursuant to section 366.26.
At a progress report and relative placement hearing on November 15, 2022, it was noted that G.C. had another change of placement and that C.C. would be moving back to the original placement with the minor.
IV
Section 366.26 Hearing
The Department's January 17, 2023, section 366.26 report recommended termination of parental rights as to the minor. The report opined that the minor was a generally adoptable child due to his age and lack of significant medical, developmental, educational, or behavioral needs. The caregivers reported that they remained committed to adopting the minor. However, the Department expressed concern that the foster father may not be fully committed to adoption because the caregivers were working to rebuild their relationship following marital infidelity by the foster father. The foster mother, however, also stated she was willing to adopt the minor as a sole parent.
The section 366.26 hearing was continued multiple times, including for father's lack of appearance and due to the paternal grandmother's interest in the placement of the children with her in Florida, necessitating an Interstate Compact on the Placement of Children (ICPC). In an interim review report, the Department reported that the caregiver stated there were behavioral issues with the minor and C.C. following visits with the paternal grandmother. The minor would refuse to shower, did not want to go to bed on time, cried every night, fought with his sister, and said that he did not want to talk to his paternal grandmother anymore. The Department did not recommend weekly contact with the paternal grandmother based on these and other concerns. The Department opined that the benefits of adoption outweighed any detriment caused by the termination of parental rights. The Department indicated that even if the paternal grandmother was approved, it would likely not recommend moving the children due to psycho-social concerns with the paternal grandmother, who had a lengthy criminal history. The Department opined that the minor was generally adoptable, he was well-adjusted to the caregiver's home, and the caregiver remained committed to adoption.
Father was not present at the continued selection and implementation hearing on May 12, 2023. He had been at the courthouse that morning after being transported and waiting in a holding cell, but he asked to be taken back to the jail prior to the early afternoon hearing. He was reported to have said that he could not "stay in this place any longer" and "[i]t's very difficult to be here all day." Defense counsel requested a continuance, stating that she believed he must have had a good reason for leaving. County counsel and the minor's counsel objected to further continuances, and the juvenile court did not find good cause to continue the hearing where the only evidence as to why father left was his statement that he did not want to be there any longer. County counsel informed the juvenile court that Florida had rejected the ICPC for the paternal grandmother because she was interested in guardianship only, not adoption, and she had resubmitted documents to pursue an ICPC for guardianship. The minor's counsel stated that the minor desired placement with his caregiver. The juvenile court found by clear and convincing evidence that the minor was likely to be adopted, noting that the caregiver had expressed interest in adopting the child. The juvenile court expressly found the minor was both specifically and generally adoptable. The juvenile court declined to place the child with the paternal grandmother based on the denial of her ICPC for adoption. The juvenile court terminated parental rights.
DISCUSSION
I
Adoptability
Father contends that the juvenile court's finding that the minor was adoptable is not supported by substantial evidence and we must reverse the order terminating parental rights to avoid making the minor a "legal orphan." We are not persuaded.
In making this argument, father relies extensively on postjudgment evidence attached to a request for judicial notice and request for factual determinations on appeal, submitted after the filing of his opening brief, and an earlier, omitted, ICWA compliance report. We deferred a decision on the request pending calendaring and assignment of the panel. We decline the request for this court to make factual determinations based on the additional postjudgment materials in Exhibit B to the judicial notice request. In In re Zeth S. (2003) 31 Cal.4th 396, 399-400, our Supreme Court held that only in a "rare and compelling case" could a reviewing court consider postjudgment evidence that was never considered by the juvenile court to reverse an order terminating parental rights. Our high court reasoned, "It has long been the general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law....' [Citation.] . . . 'Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules of Court, the authority should be exercised sparingly.' [Citation.] Absent exceptional circumstances, no such findings should be made." (In re Zeth S., at p. 405, italics omitted.) We conclude that no exceptional circumstances are presented here and decline to consider the postjudgment evidence in the materials in Exhibit B. We construe the request for judicial notice as to the materials in Exhibit A, an earlier ICWA compliance report omitted from the record, as a motion to augment the record, and grant it as such.
A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S., supra, 31 Cal.4th at p. 406.) "The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) Section 366.26, subdivision (c)(1) specifically provides that "[t]he fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The term "specifically adoptable" denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) The suitability of the prospective adoptive parent is not an issue when the child is generally adoptable; it may be placed in issue when the child is specifically adoptable. (Ibid.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) "We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment." (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.)
Here, the record supports the juvenile court's finding that the minor is generally adoptable. The minor was five years old at the time of removal and remained in his placement throughout the two-year dependency proceedings. The Department's section 366.26 report stated that the minor was healthy and met developmental milestones. He was thinking about his future and going to college, playing team sports, getting along with his teammates, and learning to express himself more when he was upset. His school report card showed his performance was satisfactory in all areas and while he continued to make progress academically, he needed to improve his writing and was a candidate to be retained. However, this was notable progress given the minor had never attended school before court intervention. While some concerns about his speech were noted by the caregiver and doctor for further assessment, the minor was not diagnosed with any learning disabilities. His report card also showed that he had a good attitude about school, made a good effort, was kind and helpful, and participated in classroom discussions. He was described as "loving, very smart and caring." The caregiver reported that when he did get upset, it was sometimes difficult for him to calm down, but he had "made a lot of progress." The seven-year-old minor sometimes did not like to take showers and was a picky eater. But the caregiver reported no other emotional or behavioral concerns until the minor began video visits with the paternal grandmother. Likewise, after C.C. was placed back with the minor in November 2022, the minor's behavior suffered at first. The caregiver felt it was because the minor no longer had her full attention but worked to help him build a relationship with C.C., and his behavior had improved. It thus appears from the record that the minor's behavioral issues were primarily triggered by interactions with family members. Nevertheless, as of December 2022, the minor no longer required Wraparound services because he had made "huge progress."
Father contends the minor was not generally adoptable due to the escalation of behavioral problems following the minor's visits with the paternal grandmother in the months leading up to the termination of parental rights. He claims that, despite significant progress, the minor regressed to behavioral issues, such as refusing to shower and go to bed on time, as reported in the interim review report. The claims are not supported by the record. There were never any concerns raised that the minor's mental or emotional status would prevent him from being adopted. Indeed, his behavioral regression appeared to be brought on by the introduction of video visits with the paternal grandmother. These negative behaviors thus appeared circumstantial and transient, as well as not any more significant than those of a typical seven year old. The reports of the minor's behavioral issues following visits with extended family did not alter the Department's view that the minor was generally adoptable and likely to be adopted. Indeed, despite reporting these behaviors, the caregiver remained committed to adoption, which is itself evidence that the minor was likely to be adopted, by that caregiver or another, within a reasonable time. (See In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Accordingly, there is substantial evidence in the record to support the juvenile court's finding that the minor was generally adoptable. We therefore need not reach father's claim regarding the minor's specific adoptability.
II
The ICWA
Father next claims that the juvenile court erred in finding the ICWA did not apply because, despite multiple appearances by father in the juvenile court, the court and the Department failed to inquire of father regarding Native American ancestry. This claim lacks merit.
At the outset of this case, the L.A. Department was unable to inquire with mother or father because mother's whereabouts were unknown and the social worker could not reach the father, who was in custody in Sacramento. As stated in the report relating to the April 19, 2021 detention hearing, the L.A. Department noted that the juvenile court in the 2018 dependency proceedings previously determined the ICWA did not apply, and that the parents at that time gave the juvenile court no reason to believe or know that the children were Indian children within the meaning of the ICWA. Both the L.A. Department and the Department in this matter conducted extensive due diligence to locate relatives. Contrary to father's claim that the Department failed to inquire of him, the record shows that the Department inquired of father on September 1, 2021, during a face-to-face interview at the jail, and father denied Native American ancestry. The Department also mailed father a request for further information regarding the ICWA, which father did not return. The Department also inquired of the paternal stepgrandmother and paternal grandmother, who each denied the family had any Native American ancestry. The Department attempted inquiry with the maternal aunt, maternal grandmother, and maternal uncle, but did not receive a response. During a phone call with the Department, mother represented she did not have any Native American ancestry. After reviewing the Department's ICWA compliance reports documenting the outreach to relatives and denials of native ancestry, as well as the ICWA finding in the prior dependency matter, the juvenile court found that the ICWA did not apply.
As this court recently explained:" 'The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for removal of Indian children from their families, and by permitting tribal participation in dependency proceedings. [Citations.] A major purpose of the ICWA is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." [Citation.]' (In re A.W. (2019) 38 Cal.App.5th 655, 662.) The ICWA defines an' "Indian child"' as a child who '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.' (25 U.S.C. § 1903(4).) The juvenile court and the social services department have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).)" (In re G.A. (2022) 81 Cal.App.5th 355, 360, review granted Oct. 12, 2022, S276056, briefing deferred.)
"[S]ection 224.2 creates three distinct duties regarding ICWA in dependency proceedings. First, from the [Department's] initial contact with a minor and his [or her] family, the statute imposes a duty of inquiry to ask all involved persons whether the child may be an Indian child. (§ 224.2, subds. (a), (b).) Second, if that initial inquiry creates a 'reason to believe' the child is an Indian child, then the [Department] 'shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.' (Id., subd. (e), italics added.) 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. (See § 224.2, subd. (c) [court is obligated to inquire at the first appearance whether anyone 'knows or has reason to know that the child is an Indian child']; id., subd. (d) [defining circumstances that establish a 'reason to know' a child is an Indian child]; § 224.3 [ICWA notice is required if there is a 'reason to know' a child is an Indian child as defined under § 224.2, subd. (d)].)" (In re D.S. (2020) 46 Cal.App.5th 1041, 1052.) We review claims of inadequate inquiry into a child's Native American ancestry for substantial evidence. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.)
Here, the juvenile court's finding was supported by substantial evidence. The Department fulfilled its duty of initial inquiry by inquiring of the parents and all available relatives. The record also shows that the juvenile court held ICWA compliance hearings, reviewed and considered the court file, including the originating history in Los Angeles County and prior finding that ICWA did not apply, and reviewed ICWA compliance reports. While the record does not disclose whether the juvenile court inquired of father directly at one of his appearances, we note the record on appeal does not include transcripts for most of the hearings before September 1, 2022, in Sacramento County and none of the hearings in Los Angeles County. It is unclear what communications occurred at those hearings and if either or both juvenile courts conducted an ICWA inquiry with father. Yet, in light of the prior court finding (which we afford only limited weight), an extensive inquiry by the Department in this case, and father's denial of Native American heritage in his interview with the social worker, even if the juvenile court failed to directly inquire of father at his first appearance, the error is not prejudicial.
III
Denial of Request for Continuance
Finally, father makes the near frivolous claim that the juvenile court erred in declining to continue the section 366.26 hearing after father voluntarily left the courthouse because he did not wish to wait any longer.
Continuances in dependency proceedings cannot be granted without giving primary consideration to the minor's interest in stability: "Upon request of counsel . . ., 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).) We review the denial of a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
The juvenile court did not abuse its discretion in denying father's request for a continuance of the section 366.26 hearing. After there had already been multiple continuances and delays in the case, sometimes due to father's failure to appear, father was present at the courthouse but asked to be returned to jail before the early afternoon hearing. He said that he could not "stay in this place any longer" and "[i]t's very difficult to be here all day." At no time did father or his counsel provide a reason why he left beyond this, let alone articulate good cause for a continuance. In light of County counsel's and the minor's counsel's objections to further delays and the total absence of a showing of good cause, the juvenile court properly exercised its discretion in denying the request.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Robie, Acting P. J., Boulware Eurie, J.