Opinion
C081859
02-23-2017
In re V.M., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. LEON M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD236229)
Leon M. (father) appeals a juvenile court order terminating his parental rights and ordering a permanent plan of adoption for his daughter, V.M. Father contends the juvenile court erred in failing to hold a hearing under the relative placement statute (Welf. & Inst. Code, § 361.3) prior to terminating his parental rights (§ 366.26). Father further contends that reversal is required because there was an inadequate inquiry into V.M.'s Indian ancestry as required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2015, an emergency response social worker placed V.M. into protective custody two days after she was born due to mother's ongoing substance abuse problem. Shortly thereafter, the Sacramento County Department of Health and Human Services (the Department) filed a juvenile dependency petition alleging that V.M. was a child within the meaning of section 300, subdivision (b) due to her parents' long history of substance abuse and V.M.'s testing positive for opiates at birth. The petition further alleged that V.M. came within the meaning of section 300, subdivision (j) due to mother's failure to reunify with V.M.'s five half siblings after they had been removed from her custody.
The detention report filed by the Department identified two relatives for possible relative placement, including V.M.'s paternal adult half sibling, L.M. The report, however, indicated that L.M. did not meet the criteria for section 309 emergency placement due to her past history with Child Protective Services (CPS) and a lack of childcare. At the detention hearing, mother and father each submitted a Parental Notification of Indian Status (ICWA-020) form. Mother claimed that she might have Indian ancestry in the "Blackfoot" (sic) and Cherokee tribes, while father claimed that he might have Indian ancestry in the Choctaw tribe. Neither parent claimed to be a member of, nor eligible for membership in, a federally recognized Indian tribe. Further, neither parent identified an ancestor that is nor was a member of such a tribe. Mother also indicated that she had previously filed an ICWA-020 form.
At the conclusion of the detention hearing, V.M. was ordered detained and placed in the care of the Department. The juvenile court also found that there was insufficient evidence to determine whether V.M. was a child within the meaning of the ICWA. However, because information was received indicating that V.M. might have Indian heritage, the court ordered the Department to provide notice to any relevant federally recognized tribes and the Bureau of Indian Affairs. The court also ordered the parents to complete and return an Indian ancestry questionnaire to the Department within two days, and scheduled a combined jurisdictional/dispositional hearing.
Nothing in the record indicates that the parents completed and filed the Indian ancestry questionnaires as ordered by the juvenile court.
The jurisdiction/disposition report filed by the Department indicated that V.M. was currently placed in a confidential foster home. The report recommended that the petition be sustained, V.M. be adjudged a dependent child, physical custody be removed from the parents, reunification services be denied, and V.M. remain in an out-of-home placement. The report stated that there was a relative assessment pending as to L.M. and relative placement would be considered before foster care placement, but noted that there were concerns about L.M.'s ability to pass the kinship in-home evaluation due to previous criminal and child welfare history. The report also stated that the ICWA might apply, and that the Department had complied with the notice provisions contained in the California Rules of Court. The report indicated that the Department had not received a response from the tribes identified by the parents.
During the two months following the filing of the original jurisdiction/disposition report, five addendums to the report were filed. The first addendum advised the juvenile court that the kinship assessment for L.M. was still pending, that exemptions are required due to L.M.'s previous criminal and/or CPS history, and that the Department is in the process of scheduling psychosocial assessments. The second addendum provided new proposed jurisdictional/dispositional findings and orders based on the filing of a first amended petition, while the third addendum advised the juvenile court that L.M.'s kinship assessment was still pending, and that her relative psychosocial assessment had been scheduled. The fourth addendum advised the juvenile court that L.M.'s home was kinship approved, and that the psychosocial assessment of L.M. was complete. The social worker, however, reported that L.M. had never visited V.M. and did not have childcare for her. The social worker also reported that L.M. was unsure about whether she would be willing and able to provide permanency in the form of adoption and/or guardianship to V.M., and that she needed more time to think about the adoption process. In the fifth addendum, the social worker reported that L.M. needed more time to arrange for childcare, and that she remains "primarily only interested in providing a foster care placement for [V.M.] as she is still unsure as to whether she would be willing and able to provide permanency for [V.M.] should the child not reunify with the parents." The addendum noted that L.M. had still not visited V.M. despite being approved to do so since the removal of V.M.
The new proposed findings and orders are similar in all relevant respects to the findings and orders set forth in the original jurisdiction/disposition report.
Prior to the jurisdictional/dispositional hearing, a paralegal for the Department filed an ICWA declaration, which stated that notice had been served on the appropriate tribes pursuant to the ICWA. Prior to serving notice, the paralegal contacted the parents on several occasions and obtained family tree information. According to the paralegal, the family trees included in the ICWA notice contained all of the relevant ICWA and family information available to her from the Department and provided by V.M.'s family. None of the tribes identified by the parents determined that V.M. was eligible to register as a member.
The record discloses that mother was involved in five prior juvenile dependency cases for her other children. Father does not dispute the Department's contention that the record reflects that none of mother's five other children were found to be an Indian child within the meaning of the ICWA.
At the conclusion of the contested jurisdictional/dispositional hearing held on November 20, 2015, the juvenile court found that the Department had met its burden of proof as to jurisdiction and sustained the allegations in the first amended petition, finding that V.M. was a child described in section 300, subdivisions (b) and (j). As to disposition, V.M. was adjudged a dependent child and physical custody was removed from the parents. The juvenile court denied reunification services to the parents, and determined that V.M. was not an Indian child within the meaning of the ICWA. The juvenile court committed V.M. to the care, custody, and control of the Department for placement, and scheduled a section 366.26 hearing. Notably, the issue of relative placement was not litigated at the dispositional portion of the hearing. Neither parent requested V.M. be placed with a relative.
Father was denied reunification services because he had been convicted of a violent felony within the meaning of Penal Code section 667.5.
Neither parent objected to the court's determination that V.M. was not an Indian child within the meaning of the ICWA.
The selection and implementation report filed by the Department recommended the juvenile court terminate parental rights and select adoption as the permanent plan. In making these recommendations, the Department explained that V.M. was generally adoptable, had been in her current placement since she was four days old, the foster caregivers had received de facto parent status in January 2016, V.M. was thriving in her home, the caregivers were able to meet all of V.M.'s needs, and the parents had been inconsistent in their visitation with V.M. With respect to relative placement, the Department explained that L.M.'s lack of a permanency commitment and lack of childcare were barriers to placing V.M. with her.
On March 24, 2016, six days prior to the scheduled section 366.26 hearing and over four months after the jurisdictional/dispositional hearing, father filed a section 388 petition asking the juvenile court to change placement of V.M. from the de facto parents to L.M. The petition stated that L.M. had provided new information to the Department since the last court date, including that she was committed to adopting V.M. and had made childcare arrangements with a provider who had been kinship approved. The petition further stated that there were no known barriers to L.M.'s adopting V.M., L.M. had passed kinship, V.M. had only been in foster care for eight months, and it was in the best interest of V.M. to be placed with a relative who could provide permanency. The petition noted that "[L.M.] had tried to follow up with the Department regarding placement and visitation after the Addendum Report was filed, but she was unable to make any progress with the Department through her efforts at obtaining placement of [V.M.]" In a declaration filed in support of father's section 388 petition, L.M. attested that she was "in contact with Kinship trying to obtain placement of [V.M.]" in "November 2015." L.M. further attested that she left several voicemail messages for the social worker in November and December 2015 but never received a call back. According to L.M., she left one voicemail message for the social worker prior to the combined jurisdictional/dispositional hearing. L.M.'s declaration, however, does not identify the substance of those messages.
By written order, the juvenile court denied father's section 388 petition without prejudice the day before the section 366.26 hearing due to father's failure to provide notice to the de facto parents or request the court provide notice. At the outset of the section 366.26 hearing, the juvenile court noted that father's section 388 petition had been denied based on a technicality and allowed the parties to present arguments regarding the petition. Father argued that V.M. should be placed with a relative, and that he intended to refile his section 388 petition with notice to the de facto parents. Father, however, did not request a continuance of the section 366.26 hearing so that the juvenile court could rule on his refiled section 388 petition before determining whether it was appropriate to terminate his parental rights. Nor did he request the court to conduct a relative placement hearing prior to conducting the section 366.26 hearing. Further, while father entered a general objection to the termination of his parental rights, he did not argue that a statutory exception to the termination of his parental rights applied or would apply if his section 388 petition were granted.
Following the parties' arguments, the court stated that the de facto parents had preference for placement because reunification services had been denied, but noted that if V.M. needed to be moved, V.M.'s relatives would be reevaluated for placement. Thereafter, the court ruled that V.M. was an adoptable child, there was no exception to adoptability, and termination of parental rights would not be detrimental to V.M. The court terminated parental rights and ordered adoption as the permanent plan.
Approximately two weeks after the section 366.26 hearing, the juvenile court issued an order denying father's refiled section 388 petition, reasoning that "[w]hile there is a change in circumstances, that being [L.M.'s] stated willingness to adopt [V.M.], the Court cannot find it would be in [V.M.'s] best interest to remove her from the home of the Prospective Adoptive Parent with whom she has resided since she was four days old. Additionally, Counsel has not set forth facts sufficiently to support setting a hearing to consider whether [the Department] abused its discretion in selecting the current caretaker as the Prospective Adoptive Parent. Following termination of parental rights, [the Department] is responsible for making placement decisions and is given exclusive care and control of the child. The juvenile court can review those decisions for abuse of discretion. [Citation.] Therefore, the [refiled] Section 388 [petition] is denied."
Father filed a timely notice of appeal from the juvenile court's order terminating parental rights and selecting adoption as the permanent plan. Father, however, did not appeal the order denying his section 388 petition or the order denying his refiled section 388 petition.
DISCUSSION
1.0 Relative Placement
Father contends the juvenile court erred in failing to hold a hearing under the relative placement statute (§ 361.3) prior to terminating his parental rights. We conclude father lacks standing to raise arguments regarding relative placement issues.
" 'Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.]' [Citation.] Thus, '[a] parent cannot raise issues on appeal which do not affect his or her own rights.' [Citations.] 'A parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights.' " (In re Jayden M. (2014) 228 Cal.App.4th 1452, 1459, italics added (Jayden M.).)
In this case, father's section 388 petition asked the juvenile court to change placement of V.M. from the de facto parents to L.M. At the section 366.26 hearing, father entered an objection to the Department's recommendation to terminate parental rights, stating that he believed the child should be placed with L.M. However, reversal of the placement order would not advance an argument against terminating father's parental rights. Although the "placement of a dependent child with relatives can, under certain circumstances, make the termination of parental rights unnecessary" (In re K.C. (2011) 52 Cal.4th 231, 237), those circumstances do not exist in this case because L.M. was seeking to adopt (In re Isaiah S. (2016) 5 Cal.App.5th 428, 436). The record does not suggest, and we will not speculate, that L.M. would have pursued other options that do not require termination of parental rights if given such an opportunity. (See § 366.26, subd. (c)(1)(A) [relative caregiver exception to the termination of parental rights]; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054 [great-uncle and wife were not seeking to adopt; placement would advance an argument against terminating parental rights].) Further, given that father did not seek to challenge the termination of his parental rights had V.M. been placed with L.M. at the time of the section 366.26 hearing, he has failed to show that placement with L.M. advances an argument against termination of his parental rights. (In re Isaiah S., supra, 5 Cal.App.5th at p. 436.) Under our reasoning in Jayden M., father has no standing to raise the paternal half sibling's issue that did not affect his own rights.
Our opinion in Jayden M. went on to explain, "Similarly, parents have no standing to appeal based on section 361.3. 'Section 361.3 gives "preferential consideration" to a relative request for placement, which means "that the relative seeking placement shall be the first placement to be considered and investigated." ' [Citations.] Until parental rights are terminated, if the child requires a new placement, any relative who has not been found unsuitable must again receive preferential consideration. [Citations.] Once a parent's reunification services have been terminated, the parent has no standing to appeal relative placement preference issues. [Citation.] Here, the parents' reunification services were terminated. Thereafter, the court heard evidence why the three proposed relative placements (paternal aunt and uncle, maternal grandmother, and paternal grandmother) were not suitable and denied placement with those relatives. Thus, only those relatives could contest the placement denials." (Jayden M., supra, 228 Cal.App.4th at pp. 1459-1460.)
Because we conclude that father lacks standing to raise arguments regarding relative placement issues, we will not consider the merits of his arguments or the Department's contention that father has forfeited his claim.
2.0 ICWA
Father contends that reversal is required because there was an inadequate inquiry into V.M.'s Indian heritage. We disagree.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) The notice must include the following information, if known: the child's name, birth date and birthplace; the name of the tribe the child is enrolled in or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and a copy of the petition. (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.)
The juvenile court and the county welfare department have an affirmative duty 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); In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) If the social worker knows or has reason to know that an Indian child is involved, the social worker is required to interview the minor's parents and extended family, if known, concerning the child's membership status or eligibility. (§ 224.3, subd. (c); Cal. Rules of Court, rule 5.481(a)(4).) The duty of inquiry of parents and extended family is continuing. (§ 224.3, subds. (a) & (c).) However, the initial inquiry need only be made to the parents, and the county welfare department is not required to conduct a comprehensive investigation into the minor's Indian status. (In re C.Y. (2012) 208 Cal.App.4th 34, 39, 42 [no duty to "cast about" for information].) The goal is "to provide the Indian tribe with all available information about the child's ancestors . . . ." (In re Francisco W., supra, 139 Cal.App.4th at p. 703.)
Here, the record discloses that a paralegal working for the Department contacted the parents on several occasions and they provided the requested family tree information so that notice could be sent to the Indian tribes they identified. Among other information, the parents provided the paralegal the first and last names of V.M.'s four grandparents and the first and last names of six of V.M.'s eight great-grandparents. Under the circumstances, we conclude the Department's inquiry was adequate. The record does not disclose that there was any information following the paralegal's inquiry of the parents that would have triggered a requirement for additional inquiry or notice. There is nothing in the record suggesting that either parent referred the paralegal to a relative that could have provided additional information relevant to V.M.'s Indian status. The Department had the names of three possible Indian tribes and its inquiry produced names of ancestors in the maternal and paternal lines. The required notice was sent. We discern no reversible error.
Father contends that reversal is required because the Department failed to interview the paternal aunt and maternal cousin for further information after the initial inquiry. We disagree. Nothing in father's brief or the record suggests that these individuals have further information regarding V.M.'s Indian status. "ICWA does not require further inquiry based on mere supposition." (In re K.M. (2009) 172 Cal.App.4th 115, 119.) "Parents unable to reunify with their children have already caused the children serious harm; the rules do not permit them to cause additional unwarranted delay and hardship without any showing whatsoever that the interests protected by [the] ICWA were implicated in any way." (Id. at p. 120.)
DISPOSITION
The juvenile court's order terminating parental rights and selecting adoption as the permanent plan is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. NICHOLSON, J.