Opinion
E083464
08-19-2024
In re Joel S. et al., Persons Coming Under the Juvenile Court Law. v. J.S. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, Mike V. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant, J.S. Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Nos. J293332, J293333 & J295043 Steven A. Mapes, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, Mike V.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant, J.S.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ J.
Mike V. (Father) and J.S. (Mother) appeal from the termination of their parental rights to their son, Joel S. They also challenge the denial of Father's petition under Welfare and Institutions Code section 388 seeking the return of Joel to his care or, alternatively, reunification services. (Unlabeled statutory references are to the Welfare and Institutions Code.) The parents argue that the court abused its discretion by denying Father's petition and that San Bernardino County Children and Family Services (CFS) and the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related state law. We disagree and affirm.
BACKGROUND
I. Detention
In May 2022, Joel's maternal grandmother brought Joel's six-month-old halfsister, Jo.S., to CFS's office, stating that she had been caring for Jo.S. since birth but could no longer take care of her. The maternal grandmother did not know who Jo.S.'s father was, and she had not seen Mother since March 2022. The maternal grandmother had been attempting to contact Mother for the past two weeks and reported that Mother was homeless.
The social worker later spoke with Mother, who claimed that the maternal grandmother kicked her out of the home the previous week and would not allow her to take Jo.S. with her. Mother reported that her son, Joel, who was almost two and one-half years old, was living in Redlands, California, with his paternal aunt, Cynthia C. Mother said that she had not seen or spoken to Joel in approximately two years, but she believed that he was doing well. She was not allowed to visit Joel and could not explain why. Mother also did not know if Cynthia had guardianship or custody of Joel, and she did not have any contact information for Cynthia.
CFS eventually located Cynthia and spoke with her by phone. Cynthia confirmed that Joel lived with her and that she did not have legal guardianship or custody of him. She said that both Mother and Father lived with her after Joel was born. After Father was arrested in October 2020, she allowed Mother and Joel to continue living with her, but Mother would "disappear" for weeks at a time and would not say when she would return. Cynthia said that Mother had "difficulty with cognitive abilities" and was unable to care for Joel or herself.
Mother said that she wanted the children returned to her. She was staying in an apartment with a friend, but when she was asked about her plan for long-term housing, childcare, and finances, she responded that she did not know because it was difficult "'being a single mother.'" Mother did not know Jo.S.'s father's name or have his contact information, because he was "'a one-night stand.'" Mother also explained that Father was incarcerated, and CFS later discovered that he had been arrested for rape and related charges.
CFS took Joel into protective custody pursuant to a protective custody warrant, and in June 2022, CFS filed section 300 petitions as to Jo.S. and Joel based on Mother's untreated mental illness and failure to provide or care for the children. Joel's petition also alleged that Father was incarcerated and unable to make appropriate arrangements for Joel's care.
Both Mother and Father filled out Judicial Council form ICWA-020 (Parental Notification of Indian Status) indicating that neither they nor their children were members of an Indian tribe. Mother filled out an additional CFS form, stating that she did not have Indian ancestry. Father also completed an additional CFS form, indicating that he did not know whether he had Indian ancestry, and he provided the telephone number of a paternal aunt, Angie V., as a family contact.
"[B]ecause ICWA uses the term 'Indian,' we do the same for consistency, even though we recognize that other terms, such as 'Native American' or 'indigenous,' are preferred by many." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1 (Benjamin M.).)
At the June 2022 detention hearing, the juvenile court asked both Mother and Father whether they had Indian ancestry, and they said that they did not. The court detained both children.
II. Jurisdiction and disposition
Joel was placed with Cynthia, and Jo.S. was placed separately in a foster home. Mother and the maternal grandmother denied any Indian ancestry, and they said that they were Cambodian.
At the jurisdiction and disposition hearings later that month, the juvenile court found that Father was Joel's presumed father and sustained the section 300 petitions as to both children, including an allegation that Father had a history of domestic violence with Mother. The court removed the children from their parents, ordered reunification services for Mother, bypassed Father because of his incarceration, and ordered monitored visits.
Mother gave birth to Angelina S. in November 2022. CFS filed a section 300 petition as to Angelina, alleging that Mother had open dependency cases involving Joel and Jo.S., that she had a history of mental health issues, that she left Angelina without provisions for her care, and that Angelina's alleged father's whereabouts were unknown. The court detained Angelina from Mother.
III. Reunification period
At Joel's and Jo.S.'s six-month review hearing in December 2022, the juvenile court ordered an additional six months of services for Mother. The court also ordered that she be referred for a psychological evaluation.
During a visit with the children in January 2023, Mother reported to the social worker that she was being drugged by a man, Mr. C., who was forcing her to engage in prostitution. She asked CFS for help and described Mr. C. and his silver car to the security guard. While the social worker was searching for a shelter for Mother and calling the maternal grandmother to pick up Mother from the visit, Mother left CFS's office in a silver vehicle. CFS reported that Mother was living with Mr. C.
In January 2023, at the contested jurisdiction and disposition hearings for Angelina, the juvenile court sustained the section 300 petition, removed Angelina from parental custody, and ordered reunification services for Mother.
CFS filed a 12-month status review report in May 2023. CFS recommended that Mother's reunification services be terminated and a section 366.26 hearing be set for both Joel and Jo.S. Mother had not completed her case plan programs, including parenting education and family therapy, and she did not complete a psychological evaluation. Mother had expressed her desire to have the children in her care, but she admitted that she was unable to care for them. She also reported that in May 2023 she was hospitalized after using drugs, stating that she "'took too much methamphetamine and blacked out.'"
CFS reported that Angelina and Jo.S. were placed together in a foster home that was meeting their needs. Mother missed several visits with the three children. When she did visit, she needed redirection and support because she was unable to handle all three children simultaneously. Father's supervised visits with Joel were conducted by phone from prison, and Cynthia reported that Father was inappropriate and disrespectful to her during his visits. When Father and Joel visited, Joel did not appear interested in talking to Father, and Father did not talk with him for very long.
For Angelina's six-month review hearing, CFS recommended that Mother's reunification services be terminated as to Angelina as well. CFS's report also stated that the social worker had asked maternal great-aunt R.S. whether she had any Indian ancestry, and she replied that she did not and that "none of her family [has] Native American ancestry."
The juvenile court terminated Mother's reunification services as to Angelina in July 2023 and as to Joel and Jo.S. in August 2023. Three months later, CFS recommended that parental rights be terminated as to all three children with a permanent plan of adoption by their respective caretakers.
IV. Section 366.26 hearing
In December 2023, Father's counsel requested a special hearing to address Father's claim that he was being denied his court-ordered supervised telephone contact with Joel. The matter was continued one month, to the section 366.26 hearing date in mid-January, to allow CFS to investigate his claim.
Later in December 2023, Father filed a section 388 petition requesting that Joel be returned to his care or, in the alternative, that he be granted reunification services. Father stated that he would be released from prison in January 2024 and would be residing with Joel's paternal aunt, Angie. He claimed that Joel had been "in his care the majority of the time, since birth and prior to incarceration." Father stated that he intended to obtain employment with his family and that he had completed parenting and anger management courses while incarcerated. He argued that returning Joel to his care would be in Joel's best interest and would give Joel the opportunity to bond with his immediate family. The juvenile court set a prima facie hearing on Father's section 388 petition.
In January 2024, CFS reported that Father was still incarcerated, and Cynthia said that Joel had not had any phone contact with him because of her concerns about Father's threats.
At the section 366.26 hearing that month, Cynthia was present, and the juvenile court asked her about Indian ancestry. She said that she was a paternal aunt related through her ex-husband, "Julio," and she did not have any Indian ancestry and did not know if the children had any Indian ancestry. The matter was continued for a further contested hearing and to comply with ICWA. Meanwhile, Father was released from prison in late January 2024.
In February 2024, CFS reported that paternal aunt Angie was asked about Indian ancestry, and she said that she was unsure of her family history and did not believe there was any Indian ancestry in the family. CFS also spoke with another paternal aunt, Julie V., who denied that there was any Indian ancestry in the family. Maternal great-aunt, R.S., and the maternal grandmother again confirmed that there was no Indian ancestry in their family.
Father had two supervised visits with Joel in February 2024. Father was described as engaged during the visits, and Joel was receptive and laughed.
In a March 2024 addendum report, CFS recommended that Father's section 388 petition be denied. Father was living with paternal uncle Jose V. and Mother. Father said that he was working with his "uncle Jay," at a repair shop until he found stable employment. Father was registered as a sex offender and was currently on parole. CFS recommended that Father's section 388 petition be denied because of his criminal history, his residency with Mother, and his lack of a parental bond with Joel, who appeared to view him "as a friendly visitor" during their two in-person visits.
At the contested section 366.26 hearing in March 2024, the juvenile court found that Father's release from prison constituted a substantial change of circumstances. But the court found that Father failed to make a prima facie showing that returning Joel to his care or ordering reunification services would be in Joel's best interest, because in addition to the reasons given in CFS's report, Cynthia stood in a parental role for Joel, and Father was "in the role of a visitor or distant relative." The court therefore denied Father's section 388 petition without setting an evidentiary hearing. The court found that ICWA did not apply and that the children were likely to be adopted, and the court terminated parental rights.
DISCUSSION
I. Father's section 388 petition
Father argues that the juvenile court abused its discretion by denying his section 388 petition, because circumstances had changed and reunification services for Father were in Joel's best interest. Father contends that the court erred by failing to credit the evidence in his petition and "depriv[ing] him of his right" to dispute CFS's "conclusions" at an evidentiary hearing. Mother joins Father's argument. We are not persuaded. "Section 388 permits the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order on the basis of changed circumstances or new evidence." (In re N.F. (2021) 68 Cal.App.5th 112, 120.) The petitioner bears the burden of showing that new evidence or changed circumstances exist and that the proposed modification would be in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
The petitioner must make a prima facie showing of both changed circumstances and best interests to trigger the right to an evidentiary hearing on a section 388 petition. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.) "'However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.' (In re Zachary G. [(1999)] 77 Cal.App.4th [799,] 806.)" (Ibid.)
Regarding the best interest element, once the court has bypassed or terminated reunification services and set the matter for a section 366.26 hearing, "'the focus shifts to the needs of the child for permanency and stability.'" (Stephanie M., supra, 7 Cal.4th at p. 317; In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).) A court considering a section 388 petition at that stage in the proceedings "must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Stephanie M., at p. 317.)
"Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (J.C., supra, 226 Cal.App.4th at p. 525.) "'"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Father's argument fails because the juvenile court reasonably determined that he did not make a prima facie showing that granting his request for return or reunification services would be in Joel's best interest. At the time of the court's denial, Joel had been in Cynthia's care for over two years and had bonded with her. She was committed to meeting Joel's needs and to providing permanency for him. And although Father presented evidence that he completed certain programs while he was in prison, secured housing, found employment, and had the support of relatives, Cynthia had been meeting Joel's medical, educational, emotional, and physical needs for years. Father's argument fails to recognize that Joel had the stability that he needed with Cynthia and viewed Father as a "friendly visitor." Moreover, Father continued to reside with Mother, who failed to reunify with Joel because she had not addressed the issues that led to his removal. For all of these reasons, it was reasonable for the juvenile court to determine that Father had not made even a prima facie showing that returning Joel to his custody or ordering reunification services would promote Joel's interest in stability and permanency. The court therefore did not abuse its discretion by denying Father's section 388 petition without an evidentiary hearing.
II. ICWA initial inquiry
Father argues that the juvenile court erred by finding that ICWA did not apply, because CFS did not ask certain extended family members whether Joel had any Indian ancestry. In response, CFS argues that no such inquiry of extended family members was required, because the statutory provision on which Father relies does not apply. We agree with CFS, but we also conclude that even if the statute did apply, any error was harmless.
The child welfare department and the juvenile court have an "'affirmative and continuing duty to inquire' whether a child in a dependency proceeding 'is or may be an Indian child.'" (In re Ricky R. (2022) 82 Cal.App.5th 671, 678, (Ricky R.), quoting § 224.2, subd. (a).) "The duty to inquire consists of two phases-the duty of initial inquiry and the duty of further inquiry." (Ricky R., supra, at p. 678.) "The duty of initial inquiry applies in every dependency proceeding." (Ricky R., supra, 82 Cal.App.5th at p. 678.) The child welfare department's "duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child." (§ 224.2, subd. (a).) In addition, "[f]ederal regulations require state courts to ask each participant 'at the commencement' of a child custody proceeding 'whether the participant knows or has reason to know that the child is an Indian child.' (25 C.F.R. § 23.107(a) (2022).)" (Ricky R., at pp. 678-679.) Similarly, "[s]tate law requires the court to pursue an inquiry '[a]t the first appearance in court of each party' by asking 'each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child.' (§ 224.2, subd. (c).)" (Id. at p. 679.)
In addition, under subdivision (b) of section 224.2, "[i]f a child is placed into the temporary custody of a county welfare department pursuant to Section 306," the department must ask "extended family members" about the child's Indian status. "Extended family members include adults who are the child's stepparents, grandparents, siblings, brothers- or sisters-in-law, aunts, uncles, nieces, nephews, and first or second cousins. (25 U.S.C. § 1903(2); § 224.1, subd. (c).)" (Ricky R., supra, 82 Cal.App.5th at p. 679.)
When the child welfare department fails to comply with its duty of inquiry under state law, we will find the error to be prejudicial and conditionally reverse if "the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
Courts are split on whether the duty to inquire of extended family members under section 224.2, subdivision (b), is triggered if the child welfare department takes the child into custody pursuant to a protective custody warrant. (E.g., In re Robert F. (2023) 90 Cal.App.5th 492, 500 (Robert F.), review granted July 26, 2023, S279743; In re Ja.O. (2023) 91 Cal.App.5th 672, 678, review granted July 26, 2023, S280572; In re D.M. (2024) 101 Cal.App.5th 1016, 1027, review granted July 24, 2024, S285537; In re Delila D. (2023) 93 Cal.App.5th 953, 961, review granted Sept. 27, 2023, S281447; In re Jerry R. (2023) 95 Cal.App.5th 388, 404; In re Samantha F. (2024) 99 Cal.App.5th 1062.) Our Supreme Court has granted review in In re Ja.O to resolve the split.
Father argues that the juvenile court's termination of parental rights should be conditionally reversed because CFS did not ask paternal uncle Jose or any paternal great- uncles whether they had any Indian ancestry.
We continue to agree with Robert F., supra, 90 Cal.App.5th 492 and similar cases that the expanded duty of initial inquiry under subdivision (b) of section 224.2 applies only if the child was placed into temporary custody without a warrant.
Joel was taken into protective custody pursuant to a warrant, so he was not taken into temporary custody under section 306. The expanded duty of initial inquiry under subdivision (b) of section 224.2 therefore does not apply. Father's argument that the juvenile court's failure to require CFS to discharge its duty of initial inquiry as to extended family members consequently lacks merit.
In addition, assuming for the sake of argument that CFS was required to ask extended family members about Joel's Indian status, we conclude that the failure to do so was harmless. Great-uncles are not extended family members within the statutory definition of that term. (§ 224.1, subd. (c).) Thus, the only extended family member whom CFS did not ask about Joel's Indian status was paternal uncle Jose. We cannot conclude on this record that Jose's response "was likely to bear meaningfully upon whether [Joel] is an Indian child." (Benjamin M., supra, 70 Cal.App.5th at p. 744.) CFS asked both Mother and Father, paternal aunts Angie, Julie, and Cynthia, and various other maternal relatives about whether Joel had any Indian ancestry. Each of those relatives said that there was no Indian ancestry in their family. Thus, "the evidence already uncovered in the initial inquiry was sufficient for a reliable determination," and "it was obvious that additional information would not have been meaningful to the inquiry." (Id. at p. 743.)
For all of these reasons, Father fails to show that the court prejudicially erred by finding that ICWA did not apply.
DISPOSITION
The orders denying Father's section 388 petition and terminating parental rights are affirmed.
We concur: CODRINGTON Acting P. J. FIELDS J.