Opinion
E054597 Super.Ct. No. J230518 & J230519
05-17-2012
In re M.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.W., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Affirmed in part and reversed in part with directions.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel, for Plaintiff and Respondent.
Mother left three children unsupervised at a motel in 2009, resulting in agency intervention by the San Bernardino County Children and Family Services (CFS). D.W., father of the two younger children, was not living with mother at the time, and, after the children were declared dependents, he was not provided with reunification services because he had a long criminal history including violent felonies and sexual offender registration. At a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26, parental rights were terminated, and father appealed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On appeal, father contends that the judgment must be reversed because (1) there has not been a finding of unfitness as to father; (2) the court erred in denying father's request to continue the section 366.26 hearing to permit him to be transported to the hearing pursuant to Penal Code section 2625; and (3) CFS failed to adequately investigate whether his children were Indian children within the meaning of the Indian Child Welfare Act (ICWA). We remand for further compliance with ICWA but otherwise affirm.
BACKGROUND
In December 2009, the family came to the attention of CFS when three children, one teenage boy T.B. (age 13), and two young girls, D'J.W. (age seven) and M.W. (age six), were reportedly sitting on a curb outside a motel, having been left unsupervised by their mother. Mother and father were divorced, and mother had physical custody of the children. CFS detained the children who were found to be unclean and smelled of urine. Mother was subsequently arrested for child endangerment.
A dependency petition was filed on behalf of the children alleging neglect and failure to protect (§ 300, subd. (b)), and leaving the children without provision for their support. (§ 300, subd. (g).) The neglect allegation was based on the fact mother left the children unsupervised for eight hours or more, that D'J.W. was suffering from medical neglect, and that father D.W. suffered from a substance abuse problem that compromised his ability to care for the children. Both D'J.W. and M.W. have seizure disorders. In addition, D'J.W., who was born 23 weeks prematurely, suffers from feeding issues, cerebral palsy, and shortened bowel syndrome, in addition to eczema and vitiligo.
At the detention hearing, the court removed the children from the parents' care and placed them in the temporary custody of CFS. At the hearing, the mother indicated she was not clear as to her Indian heritage, so CFS sent ICWA notices to the Sacramento Area Bureau of Indian Affairs (BIA), and the Secretary of the Interior.
Prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to "remove" a child from a parent's custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be "further detained." (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should "limit the control to be exercised over the dependent child" at the disposition phase. (§ 361, subd. (a).) Our interpretation is buttressed by the fact that despite the actual (if brief) removal from the parent's physical custody between the initial detention and the dispositional hearing, section 361.5 is inapplicable in the absence of a disposition hearing ordering a placement with someone other than a parent. (In re A.C. (2008) 169 Cal.App.4th 636, 650.) A court is not authorized to conduct a disposition hearing unless and until it has conducted an adjudication of the dependency petition and found that the child comes within one of the statutory definitions of a dependent child. (§ 300.) Because "removal" is a milestone in juvenile court proceedings, it is important to accurately reflect the court's actions in the minutes.
Father, who did not appear at the detention hearing, was interviewed after the initial hearing for the jurisdictional report and informed the social worker that he did not have Indian heritage. However, father did acknowledge a history of gang affiliation and arrests in the past, although he asserted his only conviction was from the year 1995. Father described the offense which resulted in the sexual offender registration requirement as a gang rape of a "home girl" who wanted to join the gang in which father was a member.
On January 27, 2010, the court took jurisdiction at the pretrial settlement conference hearing when mother submitted on allegation b-1 of the amended petition. Father was present at the hearing, at which county counsel informed the court that CFS had confirmed that father had been convicted of a violation of Penal Code section 288 in Los Angeles. The court struck the remaining allegations pertaining to father upon father's agreement that he would not receive reunification services due to his criminal record. The children were removed from the parents' custody and reunification services were ordered for the mother. The court authorized CFS to return the children to mother's custody when she obtained suitable housing.
As a result of father's conviction, the court made a finding that placement of the children with the noncustodial parent would be detrimental to the children; father submitted on this recommendation. In addition, the court ordered that no reunification services would be provided for father, pursuant to section 361.5, subdivision (b)(12). Further, father informed the court that he was unaware of any Indian heritage.
On February 4, 2010, CFS assessed mother's new residence and returned the children to her by way of a nonappearance review packet. The children remained placed with mother through the initial six-month review period and were maintained with mother under a family maintenance plan at the semi-annual review hearing. However, mother acknowledged having a substance abuse problem after testing positive for methamphetamines on four separate occasions. Nevertheless, because mother was agreeable to participating in a drug treatment program, the children remain placed with mother.
Unfortunately, mother was unable to participate in an outpatient drug program because of difficulty with child care for the two girls, and because T.B. kept running away for hours at a time, forcing mother to go look for him. On August 4, 2010, CFS filed a subsequent petition pursuant to section 342, alleging mother's substance abuse problem and the fact she was in an inpatient program where she was unable to care for T.B. T.B. was detained with mother's cousin, while the girls remained in mother's custody, so long as she remained in the inpatient facility.
On August 13, 2010, CFS filed an amended 342 petition, with an allegation that the previous disposition had been ineffective. (§ 387.) The amended petition was based on an allegation that mother had been ordered to remain in treatment in order to retain custody of the two girls, but she had been terminated from the program due to noncompliance. In addition, mother was being evicted from the residence that CFS had helped her obtain. The children were detained.
At the jurisdictional hearing on both subsequent petitions (the petition pertaining to T.B., and the petition pertaining to his sisters) on October 7, 2010, neither parent was present. The court made true findings on the allegations of the subsequent petition (§ 342), as well as the allegation of the supplemental petition, removed custody of the children from the mother, and ordered her to participate in a reunification plan. (§ 387.) The court also found that placement of the children with the noncustodial parent would be detrimental to the children.
In the 12-month review report, CFS indicated mother had failed to maintain contact with the social worker, submit drug tests, or participate in the court-ordered treatment program. For these reasons, CFS recommended termination of services at the 12-month review hearing. The contested 12-month review hearing was held on March 3, 2011, where the court terminated reunification services and ordered a hearing pursuant to section 366.26 for all three children.
Mother filed a notice of intent to file a writ petition on March 3, 2011, but it was dismissed upon counsel's notification that no writ petition would be filed.
On March 28, 2011, father wrote a letter to the court requesting that his children be placed with his niece. Another letter from father, postmarked May 19, 2011, was sent to the court requesting to attend the court hearings. In this letter, father complained that he had been trying for more than a year to have his children placed with his relatives, and he informed the court he was scheduled to be released from prison in October 2012. However, at the hearing of March 3, 2011, father's counsel addressed this issue in court and acknowledged that the relatives in question had declined placement. Father sent a similar letter to CFS that same day. In the letter to CFS, father indicated he had participated in life skills parenting class, stress management, as well as Narcotics Anonymous/Alcoholics Anonymous meetings.
Pursuant to father's request, the court issued an order for prisoner's appearance at the scheduled section 366.26 hearing. However, on June 14, 2011, father executed a waiver of the right to be present at the hearing affecting his parental rights, and authorized his attorney of record to represent him at the hearing.
On June 17, 2011, CFS submitted its report for the section 366.26 hearing and adoptability assessment. The report indicated that all three children were in the same placement and doing well. The girls had not had any contact with their father, who was incarcerated. The three children were strongly attached to each other. The foster parent was interested in adopting all three children, but T.B. did not wish to be adopted yet.
On June 21, 2011, father wrote a letter to the court explaining that the reason he refused to be transported to the hearing is that he had been recommended for a transfer to a minimum security institution and he did not want to lose his place in the queue by attending the hearing. Father asked the court not to "take away" his rights, and informed the court he wanted to call or write to his children from time to time. He addressed a similar letter to his attorney, and asked counsel to continue to fight for his parental rights. He also wrote a letter to the social worker, attaching to it certificates of completion of parenting classes, bible study, and anger management and stress management training.
On August 16, 2011, the court conducted the section 366.26 hearing to select and implement a permanent plan for the children. Neither parent was present. Father's counsel requested a continuance, indicating that while father had at first waived his right to appear, he later wrote letters indicating he did wish to be present. Counsel was also in receipt of the certificates provided by father and sought additional time to prepare and file a petition for modification pursuant to section 388. Father's counsel also objected to termination of parental rights on the ground father has an adult sister he wanted CFS to assess for placement of the children.
The court denied the requests and proceeded with the hearing at which it found the two girls adoptable. The court then terminated parental rights as to M.W. and D'J.W.Father appealed.
The court ordered a planned permanent living arrangement for T.B. and continued his matter for a further section 366.26 hearing.
DISCUSSION
1. The Termination of Parental Rights Did Not Violate Father's Due Process Rights Where Findings of Detriment Were Made Against Father.
Father argues that the orders terminating parental rights should be reversed because there was no evidence that father was an unfit parent. We disagree.
Parents have a fundamental interest in the care, companionship, and custody of their children, which requires proof of unfitness by clear and convincing evidence. (Santosky v. Kramer (1982) 455 U.S. 745, 758, 747-748 [102 S.Ct. 1388, 71 L.Ed.2d 599].) California's dependency system comports with these requirements because, by the time parental rights are terminated, the juvenile court has made multiple prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254, 256.)
California's dependency scheme no longer uses the term "parental unfitness," but instead requires a finding that awarding custody of a dependent child to a parent would be detrimental to the child. (In re Z.K. (2011) 201 Cal.App.4th 51, 66.) Due process requires that the finding of detriment be made by clear and convincing evidence before terminating a parent's parental rights. (In re Frank R. (2011) 192 Cal.App.4th 532, 538 [juvenile court failed to meet Santosky requirements by failing to make a finding of detriment by clear and convincing evidence with respect to the nonoffending father].)
California's dependency scheme comports with due process requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) "The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child." (Id. at p. 256.)
Father relies on recent cases involving nonoffending noncustodial parents in which the reviewing court reversed the termination of parental rights due to the lack of unfitness findings. In In re Gladys L. (2006) 141 Cal.App.4th 845, the Second District Court of Appeal reversed a termination of parental rights because father was a nonoffending parent, as to whom the juvenile court never made any unfitness findings. (Id. at pp. 848- 849.) The decision in that case also reveals the court made no findings of detriment pursuant to section 361.2 because the father did not request custody. (Id. at p. 847.)
In In re G.S.R. (2008) 159 Cal.App.4th 1202, the father was a nonoffending parent who was unable to have his children placed with him due to lack of adequate housing. Relying on Gladys L., supra, the reviewing court reversed the termination of parental rights due to the lack of finding of unfitness. The appellate court concluded that the situation in G.S.R. was more compelling than Gladys L. because of the level of father's involvement throughout the children's lives and the dependency. (G.S.R., at p. 1212.) The reviewing court in In re Frank R. (2011) 192 Cal.App.4th 532, followed both Gladys L. and G.S.R. (Frank R., at p. 538.) The reviewing court noted that there were no findings of unfitness because there was no finding of detriment because father had not requested custody. (Id. at pp. 538-539.)
We have no quarrel with the principle that a court may not terminate parental rights of a nonoffending, noncustodial parent without a finding of unfitness or detriment. However, this case is different because the juvenile court made multiple findings of detriment, following an initial finding of detriment by clear and convincing evidence, when it declined to consider awarding custody to father, the noncustodial parent, pursuant to section 361.2, on the basis of factors set out in section 361.5, subdivision (b)(12). Father never challenged the findings of detriment or sought custody until well after services to mother were terminated. The findings of detriment made at the initial disposition hearing, and subject to periodic reviews by the court, give rise to a finding of unfitness, within the meaning of Cynthia D. v. Superior Court, supra, 5 Cal.4th at pages 255-256.
Father also argues that the dependency scheme violates father's constitutional rights because it permitted finding of unfitness solely on the basis that father had a violent felony conviction. Not so. The dependency scheme does not permit a finding of unfitness due solely to a violent felony conviction, and father does not cite any authority so holding. Instead, the dependency scheme gives the juvenile court discretion to deny reunification services to a parent who has been convicted of a violent felony, which father acknowledges. (§ 361.5, subd. (b)(12); In re Allison J. (2010) 190 Cal.App.4th 1106, 1117.) Denial of reunification services does not violate a parent's constitutional rights because there is no constitutional right to reunification services. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.)
A parent who has been denied services may petition for modification of that order by showing changed circumstances (§ 388; In re Allison J., supra, 190 Cal.App.4th at p. 1115), but father did not do so here, and the fact he spent most of the dependency in prison on new criminal charges indicates that his criminal history is not past history. It is unlikely he would be able to convince the juvenile court that the best interests of his medically fragile children would be promoted by an order providing reunification services to him. The fact father was denied services due to his violent felony conviction did not result in a violation of his constitutional rights.
Furthermore, the fact father submitted on the social worker's recommendation to deny services precludes him from challenging the evidence to support the dispositional order because father acquiesced to the recommendation. (In re N.M. (2011) 197 Cal.App.4th 159, 167.) Having negotiated such an agreement, father is now barred from asserting the lack of findings or violation of parental rights based on those allegations. (Id. at p. 168.)
Father finally argues that the finding of detriment is not supported by the evidence and thus does not show parental unfitness. He asserts the issue may be raised for the first time on appeal because the waiver rule is not enforced when it would conflict with due process. We disagree. The finding of detriment was made at the initial dispositional hearing by clear and convincing evidence, and father did not challenge the finding on appeal or by way of writ. We have already determined that father's due process rights were not violated by the detriment findings so the waiver (forfeiture) rule applies. The findings and orders became final when father failed to challenge them, and they are now res judicata. (In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705; see also Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 854.)
2. The Juvenile Court Did Not Violate Penal Code Section 2625 by Denying a Continuance in Light of Father's Written Waiver of the Right to Attend the Hearing.
Father argues that he was prejudiced by the court's denial of a continuance of the section 366.26 hearing, which allowed the hearing to proceed in his absence. Father contends that this resulted in a violation of Penal Code section 2625. We disagree.
A continuance shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minor's best interests. (§ 352, subd. (a).) We reverse an order denying a continuance only upon a showing of an abuse of discretion. (In re J.I. (2003) 108 Cal.App.4th 903, 912.) Here, the only reason given for the continuance was counsel's representation that father wished to be present for the hearing and time was needed to secure a transportation order, as well as to prepare a section 388 petition. There was no abuse of discretion because the certificates obtained by father would not have satisfied the statutory criteria of showing changed circumstances, and because father had waived, in writing, his right to be present at the section 366.26 hearing.
In pertinent part, Penal Code section 2625 provides that in any proceeding under Welfare and Institutions Code section 366.26, where the proceeding seeks to terminate the parental rights of any prisoner and the prisoner or his attorney indicates the prisoner's desire to be present, the court shall issue an order for the temporary removal of the prisoner from the institution and for the prisoner's production before the court. (Pen. Code, § 2625, subd. (d).) The section goes further to provide that no proceeding may be held pursuant to section 366.26 without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding. (Pen. Code, § 2625, subd. (d).)
However, the due process rights of a prisoner are adequately protected where the prisoner is represented by counsel at the hearing. (In re Jesusa V. (2004) 32 Cal.4th 588, 602.) Thus, even where there has been a failure to bring a prisoner-parent to court in violation of Penal Code section 2625, the error does not mandate reversal unless the result would have been different had the parent been present. (In re Iris R. (2005) 131 Cal.App.4th 337, 342-343; In re J.I., supra, 108 Cal.App.4th at p. 913.)
Here, father waived his right to be present at the section 366.26 hearing in writing. Father followed up this written waiver with letters of explanation addressed to the court, the social worker, and his attorney, but none of father's letters evinced a desire to continue the hearing to a later date so he could attend. Father waived-knowingly and intelligently-his right to be present at the section 366.26 hearing. Because father waived his right to be present, it was not an abuse of discretion to deny a continuance to secure father's presence for the hearing.
More importantly, even if there were a violation of the right to be present, the only prejudice suffered by father was the loss of an opportunity to challenge the court's finding that the children were adoptable. It is not reasonably probable that the outcome would have been different if the court had continued the hearing so father could be present. (In re J.I., supra, 108 Cal.App.4th at p. 913.)
Regarding counsel's reason that a continuance was needed to file a section 388 petition, there was no abuse of discretion. The only certificates provided by father consisted of a certificate of completion of (a) 12 lessons in the Book of Romans as part of the Winning Way Bible Studies Series; (b) a program entitled Parenting With Dignity; (c) Stress Management, Anger Management and Victim Awareness Training; and, (d) Greystone Chapel's Bible Study Program, "What Must I do To Be Saved." None of these certificates demonstrate a material change in father's circumstances as a prisoner serving a sentence, and a parent with a violent felony conviction in his background.
It is not reasonably probable that a different result would have obtained if the court had granted a continuance permitting counsel to file a section 388 petition. There was no abuse of discretion in denying the continuance.
3. The Finding that ICWA Did Not Apply Was Improper.
Father argues that reversal of the order terminating parental rights is required to allow for further inquiry as to whether the children are Indian. We agree.
"If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the necessary information . . . ." (§ 224.3, subd. (c).) Under California law, the court, the county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child is or may be an Indian child in all dependency proceedings. (§ 224.3, subd. (a); In re A.B. (2008) 164 Cal.App.4th 832, 838.)
The social worker has a duty to inquire about and obtain all information about a child's family history in order to assist the tribe in determining if the child is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116; Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406, 1410.) Where the identity of the tribe is unknown, notice must be sent to the BIA and the Secretary of the Interior. (25 U.S.C. § 1912, subd. (a); In re Cody B. (2007) 153 Cal.App.4th 1004, 1013.) The Indian tribe determines whether the child is an Indian child (In re Robert A. (2007) 147 Cal.App.4th 982, 988), so only a suggestion of Indian ancestry is needed to trigger the notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406, 1408.)
Here, the mother informed the social worker she might have Indian heritage but had no information about the specific tribe. Mother did provide the names of her parents (the children's grandparents) in the jurisdiction/disposition report, but that information was not provided to the BIA or the Secretary of the Interior. There is no indication that CFS made any attempt to contact maternal relatives to confirm or refute the suggestion of Indian ancestry. Given that T.B. was placed with a maternal cousin for a portion of the dependency, there was ample opportunity for CFS to obtain information about the family to provide to the BIA and the Secretary of the Interior. The finding that ICWA did not apply was improper because CFS did not conduct an adequate inquiry with relatives, or provide the names of relatives in the notices that were sent. The breach of duty to inquire into the Indian heritage of the minors was error necessitating a limited reversal. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1387.)
Father denied having Indian heritage at first, but later thought he might have Indian heritage, although he could provide the names of no relatives who might have information about Indian ancestry. Father executed a JV-020 form, parental notification of Indian status, on January 27, 2010, indicating he had no Indian ancestry as far as he knew. However, even if he is assumed to be a non-Indian parent, he has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)
We cannot find the error to be harmless because the omitted information prevented the BIA and Secretary of the Interior from having a meaningful opportunity to search the tribal registry. (In re S.M., supra, 118 Cal.App.4th at pp. 1116-1117.) We therefore order a limited remand with directions to the trial court to effectuate proper inquiry and comply with the notice provisions of the ICWA if Indian heritage is indicated.
DISPOSITION
The order terminating parental rights is conditionally reversed, and a limited remand is hereby ordered, as follows:
The court is directed to order CFS to obtain complete information about maternal and paternal relatives and to provide corrected ICWA notices to the BIA and the Secretary of the Interior. Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether the children are Indian children. If at any time within 60 days after notice has been given there is a determinative response that the children are or are not Indian children, the juvenile court shall find in accordance with the response. If there is no such response, the juvenile court shall find that the children are not Indian children. If the juvenile court finds that the children are not Indian children, it shall reinstate the original order terminating parental rights. If the juvenile court finds that the children are Indian children, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and all related federal and state law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
KING
J.
CODRINGTON
J.