Opinion
E069819
06-07-2018
In re H.J., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.F., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J267742) OPINION APPEAL from the Superior Court of San Bernardino County. Erin Alexander, Judge. Affirmed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant J.F. (mother) appeals from the juvenile court's order terminating parental rights to her daughter, H.J., under Welfare and Institutions Code section 366.26. She contends (1) her due process rights were violated because she did not receive proper notice of the section 366.26 hearing; and (2) both the juvenile court and plaintiff and respondent San Bernardino County Children and Family Services (CFS) failed to conduct a proper inquiry of the father under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We reject her contentions and affirm.
All further statutory references are to the Welfare and Institutions Code. --------
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention.
H.J. (born in 2015) came to the attention of CFS in October 2016 when law enforcement responded to a domestic violence incident between mother and her boyfriend. Multiple drug paraphernalia items were found in the home, mother was gone, and her boyfriend was arrested on an outstanding warrant for attempted murder and narcotic sales. Officers took the child to the police station and called mother to pick up her child. After mother arrived, she was arrested for an outstanding battery warrant and for being under the influence of a controlled substance. The child was placed in protective custody. On October 12, 2016, CFS filed a section 300 petition alleging that H.J. came within subdivisions (b) and (g), based on mother's substance abuse problem, the living conditions of her home, and that father's whereabouts were unknown. On the ICWA-020 form, mother checked the box: "I have no Indian ancestry as far as I know." At the October 13, 2016, detention hearing, the juvenile court was advised that mother was present that morning in court and had spoken with her attorney, but she did not return in the afternoon for the hearing. After finding a prima facie case for detaining the child, the court ordered reunification services and supervised visitation. The court also ordered parents to "reveal membership in an Indian tribe."
B. Jurisdiction/Disposition.
On October 20, 2016, CFS spoke with mother, who acknowledged that she was aware of the jurisdiction/disposition hearing. She provided an address in Adelanto, and notice was sent to that address via certified mail. After initiating search efforts to locate father, CFS received a call from him, and he said he was not aware of the hearing. He declined to provide his address; therefore, CFS sent notices, including "ICWA 020, JV140 and JV505" via certified mail to five addresses obtained through its search efforts.
According to the jurisdiction/disposition report filed on November 1, 2016, mother tested positive for marijuana, and she presented a recommendation for medical marijuana due to a history of back pain. Father was located in Harrison, Arkansas. He filled out and signed the statement regarding parentage (JV-505 form) indicating he had signed the child's birth certificate and helped take care of her when he lived with mother, and the Notification of Mailing Address (JV-140 form). The ICWA-020 form was filled out with father's name and the "Parent" box next to "Relationship to child" was checked; however, the form was never signed, nor was it filed with the juvenile court. The only form filed with the court was the Statement Regarding Parentage. The social worker spoke with father on November 14, 2016; he said he wanted to care for H.J. and was willing to move into a home with the paternal grandmother in order to have assistance with the child's care. Mother failed to drug test in November 2016, and she did not attend individual counseling or parenting classes.
At the December 14, 2016, jurisdiction/disposition hearing, mother was not present but had requested to appear telephonically. When counsel called her, there was no answer. Father appeared telephonically, and he was found to be the presumed father. Mother's counsel informed the juvenile court that mother was very hostile towards her when the two spoke the previous day, and that mother was requesting a change in counsel. The matter was set contested by mother, and a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing was granted contingent on mother's personal appearance at the hearing.
At the January 31, 2017, contested jurisdiction/disposition hearing, father appeared telephonically and mother was present. Mother's counsel's request to be relieved due to a conflict was denied as untimely and due to lack of good cause. Mother testified, denying the allegations in the petition; however, due to the late hour, it was necessary to continue to another day. Based on mother's counsel's request, the juvenile court ordered mother to return the next day at 11:00. The court advised mother that if she "fail[ed] to appear, the hearing could go forward without [her] based on the information included in the report, which could substantially impact [her] rights."
The next day, father appeared telephonically and relayed mother's message that she was "on her way." When mother failed to appear by the afternoon, CFS and the child's counsel moved to strike her testimony because she was unavailable for cross- examination. Over mother's counsel's objection, the juvenile court struck mother's testimony. The court then sustained the allegations in the petition, ordered reunification services, and ordered an Interstate Compact for the Placement of the Children (ICPC) for father. The court adopted CFS's findings, which included the one stating that the child "does not come under the provisions of [ICWA]." There was no discussion on the record as to father's failure to complete the ICWA-020 form.
C. Six-month Review Hearing.
In the six-month status review report filed on July 24, 2017, CFS recommended a section 366.26 hearing be set to establish a permanent plan of adoption. Mother was referred to various programs, however, she refused to attend them, and she failed to drug test. Since the child's removal in October 2016, mother participated in only nine visits, three of which were terminated due to her behavior; mother had not visited the child since May 2017. Mother was currently homeless, and she had been arrested for stealing a car. Father had not returned calls from the social worker, nor had he confirmed participation in his services. The child had been living with maternal relatives since March 2017, was doing well, and was attached to them. Notice of the hearing was mailed to mother's address in Adelanto, and it was provided to her attorney of record.
At the August 1, 2017, six-month status review hearing, mother failed to appear. Mother's counsel objected to termination of services, setting of the section 366.26 hearing, and reduction in visitation. Counsel had no affirmative evidence to present. The juvenile court terminated reunification services and reduced visitation to once per month. The section 366.36 hearing was set for November 29, 2017, and the court directed that notice of mother's appellate rights be sent to her last known address.
On September 11, 2017, CFS requested an order authorizing service of notice of the section 366.26 hearing through mother's attorneys of record. The request included a declaration of due diligence conducted by CFS, noting that seven addresses and one post office box address, along with 12 telephone numbers, were found. All of the addresses were eliminated, and CFS was unable to locate mother. On September 12, 2017, the juvenile court ordered notice of the section 366.26 hearing through mother's attorneys of record. Similarly, CFS sought, and the court granted, an order authorizing service of notice of the section 366.26 hearing through father's attorney of record. On September 21, 2017, CFS provided notice of the section 366.26 hearing to mother through her attorney of record.
D. Section 388 Petition.
On October 11, 2017, mother filed a section 388 petition requesting increased visitation and reinstatement of her services. She claimed that she had found a residence closer to the child's placement, enabling her to commit to her classes and visitation. She believed that it was in H.J.'s best interest to be with her mother and "to continue the bond which had been broken, make up for the lost time . . . ." Mother signed the request on September 27, 2017. On October 17, 2017, the juvenile court denied the section 388 petition, without a hearing, on the grounds "the request does not state new evidence or a change of circumstances." The court added that mother "is in the very early stages of initiating services; there is no change in circumstance."
E. Section 366.26 Hearing.
The section 366.26 hearing report was filed on November 15, 2017. CFS recommended termination of parental rights and a permanent plan of adoption by H.J.'s maternal aunt and uncle, with whom she had been living since March 2017. The report noted that ICWA did not apply. Mother had not visited the child since May 2017, and she had failed to contact CFS.
At the November 29, 2017, section 366.26 hearing, mother failed to appear. A discussion about notice was held off the record. Afterward, the juvenile court announced, "We do have appropriate notice . . . . I will note mother was served through counsel. [¶] I'll indicate that subsequent to that, mother filed a [section 388 petition] with an address that no one was aware of and a phone number." Mother's counsel informed the court that she had attempted to contact mother with that telephone number, but it was no longer in service. Mother's counsel requested a trial on the issue of termination of parental rights. An unidentified witness provided information that mother had been in contact with the new adoptions worker and was trying to get to court that morning. The matter was set for a contested hearing on January 17, 2018. The court asked that mother's contact information be provided to counsel, "and if the agency has any further contact with the mother, to advise her of that date."
At the January 17, 2018, contested section 366.26 hearing, mother failed to appear. Her counsel informed the court: "I did send notice to the address that was provided by the social worker at the last hearing for mother. She—she has not responded. I also did call the phone number that was listed on the [section 388 petition] that mother filed, and that number is out of order. So I will proceed today and object as to the recommendation to terminate parental rights on mother's behalf. I have no affirmative evidence." After finding that notice was given as required by law, that it was likely the child would be adopted, and that none of the exceptions in section 366.26, subdivision (c), applied, the court terminated the parental rights and selected adoption as the permanent plan.
II. DISCUSSION
A. Mother Received Proper Notice of the Section 366.26 Hearing.
Mother contends her due process rights were violated because she did not receive proper notice of the section 366.26 hearing. We disagree.
"[P]arents are entitled to due process notice of juvenile proceedings affecting their interest in custody of their children. [Citation.] And due process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' [Citation.]" (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)
Section 294 sets forth the general notice requirements for a section 366.26 hearing. It specifies that mother is entitled to notice. (§ 294, subd. (a)(1).) "Service of the notice shall be completed at least 45 days before the hearing date." (§ 294, subd. (c)(1).) "The notice shall contain the following information: [¶] (1) The date, time, and place of the hearing. [¶] (2) The right to appear. [¶] (3) The parents' right to counsel. [¶] (4) The nature of the proceedings. [¶] (5) The recommendation of the supervising agency. [¶] (6) A statement that, at the time of hearing, the court is required to select a permanent plan of adoption, legal guardianship placement with a fit and willing relative, or another planned permanent living arrangement, as appropriate, for the child." (§ 294, subds. (e)(1)-(6).) Subdivision (d) provides for the following notice where the section 366.26 hearing is continued: "Regardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, or to any person entitled to receive notice pursuant to this section, subsequent notice for any continuation of a Section 366 .26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296 . . . or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent, and to any person entitled to receive notice pursuant to this section, regarding that subsequent hearing." (§ 294, subd. (d), italics added.)
Here, after CFS conducted a due diligence search for mother to provide her notice of the section 366.26 hearing, the juvenile court ordered that notice be made through mother's attorneys of record. (§ 294, subd. (f)(7)(A).) On September 15, 2017, mother appeared at the juvenile court. Six days later, CFS provided notice to mother, via her attorneys, that a section 366.26 hearing would be held on November 29, 2017. On October 11, 2017, mother filed a section 388 petition listing an address in San Bernardino, and a phone number that no one knew about. On the morning of the section 366.26 hearing, November 29, 2017, the juvenile court announced, "We do have appropriate notice . . . . I will note mother was served through counsel. [¶] I'll indicate that subsequent to that, mother filed a [section 388 petition] with an address that no one was aware of and a phone number." Shortly thereafter, the court was informed that mother had contacted the adoption social worker and claimed that she was trying to get to court for the hearing. Her counsel asked that the matter be set contested. The court set it for January 17, 2018, and again stated: "I do find that notice was correct. Based on the representation that [mother] contacted someone this morning, it would also appear that mom's received notice." We agree with the trial court and conclude that mother received notice of the original date set for the section 366.26 hearing.
Likewise, we conclude that mother received notice of the continued date of the section 366.26 hearing. "[O]nce the court has made the initial finding that notice has properly been given to the parent . . . subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296 . . . or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. . . ." (§ 294, subd. (d).) The juvenile court stated: "I will ask that any contact information be provided to counsel, and if the agency has any further contact with the mother, to advise her of that date [referring to the continued section 366.26 hearing date of January 17, 2018]. [¶] But again I do find that notice was correct." On January 17, 2018, mother's counsel stated: "I will indicate for the record that I did send notice to the address that was provided by the social worker at the last hearing for mother. She—she has not responded. I also did call the phone number that was listed on the [section 388 petition] that mother filed, and that number is out of order." On January 17, 2018, mother filed a notice of appeal from the court's order terminating parental rights, suggesting that she went to court that day to obtain the necessary form and file it.
Assuming, without deciding, that due process required notice directly to mother and not merely to her counsel, we conclude the error, if any, was harmless. (In re A.D. (2011) 196 Cal.App.4th 1319, 1325-1327; In re Daniel S. (2004) 115 Cal.App.4th 903, 912 ["Errors in notice do not automatically require reversal. . . . We review such errors to determine whether they are harmless beyond a reasonable doubt.") Mother contends we should not consider whether the error was prejudicial because the failure to give notice is "structural" error, which requires automatic reversal. She cites In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116. However, our high court more recently cautioned against using a structural error analysis in the context of a dependency proceeding. (In re James F. (2008) 42 Cal.4th 901 (James F.).) James F. reviewed a decision of the Court of Appeal holding there was structural error where the trial court failed to explain to a mentally incompetent father the need for, and effect of, appointing a guardian ad litem in a juvenile dependency proceeding. (Id. at pp. 904-905, 911, 916-917.) Reversing, our Supreme Court concluded "that error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding is trial error that is amenable to harmless error analysis rather than a structural defect requiring reversal of the juvenile court's orders without regard to prejudice." (Id. at p. 915.)
In reaching that conclusion, the James F. court explained: "The United States Supreme Court has not applied this reasoning [structural error] outside the context of criminal proceedings . . . nor has it ever held that harmlessness is irrelevant when the right of procedural due process—the constitutional right on which [father] here relies—has been violated." (James F., supra, 42 Cal.4th at p. 917.) The court observed that "juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment." (Id. at p. 915.) It noted that evidentiary rules are more relaxed, certain constitutional rights given to a criminal defendant are not afforded to a parent, there is no right to a jury trial, and the standard of proof is lower. (Ibid.) "Finally, the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding." (Ibid.) The court concluded, "We cannot agree with the Court of Appeal majority that prejudice is irrelevant in a dependency proceeding when the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the child." (Id. at p. 917.) "If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (Id. at p. 918.) We conclude that James F. requires us to assess the prejudicial effect of the error.
Under the reasoning of the court in In re Daniel S., supra, 115 Cal.App.4th 903, we must determine whether, if mother had appeared at the November 29, 2017, and January 17, 2018, hearings, there is no reasonable doubt that the results of those proceedings would not have been different. We conclude that any error in notice was harmless beyond a reasonable doubt. Mother made no efforts to reunify or maintain any bond with the child. Her reunification services were terminated for failing to participate in any services. She had not visited the child since May 2017, which was approximately eight months prior to the contested section 366.26 hearing. Meanwhile, the child had been residing with her maternal relatives since March 2017, and she was strongly bonded with them. The child was adoptable, and no exception to termination of parental rights existed.
B. The Duty to Inquire Under ICWA Was Satisfied as to Father.
Mother contends that both the juvenile court and CFS failed to conduct a proper inquiry of the father under ICWA. We do not agree.
"The court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . has been[] filed is or may be an Indian child . . . ." (§ 224.3, subd. (a).) The court must inquire into a parent's possible Indian ancestry, and must, at the parent's first appearance in a juvenile dependency matter, order the parent to fill out and return the ICWA notification form (ICWA-020 form). (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a)(2), (3).) However, if the court or the social services agency provides the form or asks the parent if the child has or may have Indian ancestry and the parent fails to respond, the initial duty of inquiry is discharged. The duty to make further inquiry is triggered only if the court or social services agency receives information from another source which suggests that the child may be an Indian child. (§ 224.3, subds. (b)-(d); Cal. Rules of Court, rule 5.481(a)(4); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941-942.)
Here, father did not appear at the October 13, 2016, detention hearing. On October 26, 2016, CFS filed a declaration of due diligence stating that certified mail notices, including the ICWA-020 form, were sent to five addresses based on search efforts. Once CFS served the ICWA-020 form, it fulfilled its duty to inquire. Thereafter, it was father's responsibility to fill out the form and submit it to CFS and/or the juvenile court, or present evidence of potential Indian ancestry.
Father filled out and signed two of the three forms he received, namely, the Statement Regarding Parentage (JV-505 form) and the Notification of Mailing Address (JV-140 form). Regarding the ICWA-020 form, father filled out with his name, checking the "Parent" box next to "Relationship to child," but failed to sign it. At the February 1, 2017, contested jurisdiction/disposition hearing, father appeared telephonically and his counsel was in the courtroom. There was no objection when the court found ICWA did not apply. Thereafter, when the six-month status review noted that ICWA did not apply, neither father nor his counsel ever suggested to the contrary. There is no indication in the record that the child has Indian heritage. Absent any information or suggestion that the child might have Indian heritage, neither CFS nor the juvenile court had any further duty of inquiry.
Based on the record, there is sufficient evidence that an inquiry was made as to whether H.J. is an Indian child. The record also contains no information or suggestion that the child has such heritage. We therefore conclude that there was no violation of ICWA.
III. DISPOSITION
The judgment terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. FIELDS
J.