Opinion
E068166
10-05-2017
In re D.M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. V.G., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J265627) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
This case concerns V.G. (mother) and her now nearly five-year-old son, D.M. Mother was incarcerated for felony child abuse at the time of the December 2016 six-month review hearing when the juvenile court terminated her services and set a permanency planning hearing (Welf. & Inst. Code, § 366.26). In April 2017, the court terminated her parental rights and selected adoption with D.M.'s maternal great-grandparents as his permanent plan.
Mother appeals the order terminating her parental rights on the ground the juvenile court erroneously terminated her services at the six-month review hearing. She also argues we should remand this case so the juvenile court may properly inquire into the application of the Indian Child Welfare Act (ICWA). We affirm. Mother's challenge to the order terminating her parental rights is meritless because she failed to file a writ to preserve for appeal her challenge to the December 2016 order terminating services. As to ICWA, there was insufficient evidence to trigger the statute's notice provision and thus the court properly determined ICWA does not apply.
I
FACTUAL BACKGROUND
On May 11, 2016, a San Bernardino police officer reported to a San Bernardino County Children and Family Services (CFS) social worker that D.M., who was three years old at the time, was being treated at the hospital for injuries indicative of child abuse. The officer said police were investigating mother and her current boyfriend and D.M.'s maternal great-grandmother was caring for him at the hospital.
According to the abuse referral, the maternal great-grandmother had taken D.M. to the hospital on Wednesday May 11, 2016. She reported that a week earlier (Wednesday May 4), she had asked to see her great-grandson but mother wanted to wait until Sunday May 8 and mentioned D.M. had a bruise on his face. When she finally saw D.M. that Sunday he still had bruising. She recalled that in the week leading up to the injury D.M. had made comments about not wanting to go home.
Mother was 21 years old at the time of these events. In her initial interview, she told the social worker she had noticed the bruise early in the morning on Sunday, May 8. She said D.M. had told her a "bad guy" had hit him, which she took to be a reference to D.M.'s biological father C.M. (father), because he used to physically abuse both of them. She said back when they lived with father, he would hold D.M. under water in the bathtub, hit his face, and hold him upside down ignoring his screams. She had left father recently and was currently staying in a senior living apartment with her boyfriend's grandparents. According to mother, father was arrested for attempted murder for trying to kill his own mother. She believed he was living in Utah.
Mother reported having been diagnosed with depression, anxiety, and PTSD and said she took antidepressant and anti-anxiety medication. The social worker noticed mother had healing cuts on her arms and mother said the stress of having CFS involved in her life had pushed her to cut herself.
The maternal great-grandmother told the social worker mother had been cutting herself on her arms and legs in D.M.'s presence. She was concerned about D.M.'s safety because mother was spending a lot of time with her current boyfriend and leaving D.M. in his care. She believed the boyfriend may have caused D.M.'s injury and noted he used drugs and had a violent criminal history.
Mother's boyfriend told the social worker he had never hit D.M. and was out of town for work the week of the injury. In a second interview, mother said her boyfriend had been home the week of the incident. However, she also said she had been having four to five seizures a day and needed to sleep after each one.
When the social worker saw D.M. on May 13, 2016, he had a light colored bruise on his right cheek and both eyes were "blood red in the lower half of the eyeball." The Children's Assessment Center examined D.M. and concluded his injuries were caused by child abuse—specifically, a blow to the face and strangulation.
The social worker unsuccessfully attempted to locate father before filing the detention report.
CFS placed D.M. in the protective custody of his maternal great-grandparents and filed a section 300 petition against the parents. The petition alleged: D.M. had suffered serious physical harm, inflicted non-accidentally, while in mother's care (§ 300, subd. (a)); mother suffered from mental health issues that compromised her ability to parent and she exposed D.M. to domestic violence and dangerous people (§ 300, subd. (b)); father engaged in domestic violence and had a violent criminal history (§ 300, subd. (b)).
Unlabeled statutory citations refer to the Welfare and Institutions Code.
The petition also contained allegations under section 300, subdivisions (e) [severe physical abuse] and (g) [no provision for support], and additional allegations under section 300, subdivision (b) [failure to protect], but the juvenile court struck them on CFS's recommendation.
CFS filed an ICWA-020 form in which mother denied having Indian ancestry. When the issue of ICWA application came up at the detention hearing, mother reiterated she had no Indian heritage, but said she thought father did. She thought the tribe was from Utah, but she did not know its name. The court speculated it could be the Paiute tribe and when mother replied "I don't know," the court said, "That's as close as we're going to get today." The court detained D.M. with his great-grandparents and ordered supervised visits for the parents.
The social worker interviewed mother about the allegations in the petition. This time, she said she thought D.M.'s injury occurred either when he fell at the park or at the bowling alley. She said she had not noticed the broken blood vessels in his eyes. She also said her depression and anxiety medications were not helping her and she had not taken them for two months, but was still taking medication for her seizures.
Mother elaborated on her relationship with father, saying she had been with him for five years, during which time he hit her often and had even punched her in the stomach when she was pregnant with D.M. She also said she had been there when father tried to kill his mother a year earlier, by putting her in a choke hold.
CFS had serious concerns about both parents' ability to care for D.M. and recommended family reunification services tailored to their issues. D.M. was doing well in his great-grandparents' care. He was physically healthy and "appear[ed] to be quite bonded to his [great-]grandmother." The great-grandparents wanted to adopt him if reunification with the parents failed.
In the jurisdiction/disposition report, the social worker said father had left her a voice message saying he wanted custody of D.M. and had "allegedly" come to court on the day of the detention hearing but did not enter the courtroom. The social worker tried unsuccessfully to reach him and ultimately left him a voice message with details of the upcoming jurisdiction and disposition hearing and her phone number. Father's phone number had a local area code. CFS conducted a due diligence search to notice father of the jurisdiction and disposition hearing. It sent notice of the hearing and an ICWA-020 form via certified mail to six potential addresses in Texas, Utah, and Yucaipa, California. In January 2017, CFS learned father had been living at the Yucaipa address when a process server was able to substitute serve him with notice of the section 366.26 hearing through an adult co-occupant who confirmed he lived there. However, father never participated in the dependency or got back in touch with CFS.
The court held the jurisdiction and disposition hearing in June 2016. Mother pled no contest to the petition and waived her right to trial and to present evidence. The court found the petition allegations described above true and declared D.M. a dependent within the meaning of section 300, subdivisions (a) and (b). D.M. was three and a half years old at the time of the hearing. The court removed him from mother, found placement with father would be detrimental to his health and safety, and placed him in his great-grandparents' care. The court approved the parents' case plans, and ordered family reunification services for both parents, as well as weekly supervised visits. Among other things, mother's case plan called for a psychotropic medication evaluation, general counseling, and domestic violence and parenting programs.
The court also adopted several findings in the jurisdiction/disposition report, including one advising mother it could terminate services at the six-month review hearing if she were "convicted of a felony indicating parental unfitness" and another advising her it could do the same if she "fail[ed] to visit or contact" D.M.
In its six-month status review report, CFS recommended terminating both parents' services. The report stated mother had been in custody during the review period at West Valley Detention Center. The social worker had tried to contact her in jail on a monthly basis to "ensure that she understands the responsibilities outlined in [her case plan]." West Valley staff informed the social worker the jail did not offer all of the services outlined in mother's case plan. The social worker was never able to discuss with mother when she was going to be released and what services, if any, she had participated in while in custody.
CFS filed the six-month status review report on December 9, 2016. That same day, unbeknownst to CFS or the juvenile court, mother pled no contest to one count of felony child abuse (Pen. Code, § 273a) and the criminal court sentenced her to two years in prison.
We grant CFS's request that we take judicial notice of the San Bernardino County Superior Court minute order reflecting mother's plea and sentence. (Evid. Code, § 452; Code Civ. Proc., § 909.)
At the six-month review hearing on December 20, 2016, mother was present in custody and her counsel presented the following stipulated testimony: "[Mother] was arrested on July 7th of this year. She has been sentenced to two years with half time, and five months credit, and she expects to be released on or about July of next year, 2017." Counsel requested continued services, noting D.M. was over the age of three at the time of removal and therefore not subject to the shortened reunification period mandated by section 361.5, subdivision (a)(2). Counsel acknowledged that mother had not visited D.M. but attributed that failure "solely [to] her incarceration," explaining she had been placed in custody a week after the jurisdiction and disposition hearing. Counsel added that mother had informed her "she has had phone calls with the child that have been supervised by the relative caregiver."
D.M.'s counsel recommended terminating mother's services based on the court's warning at disposition that failure to visit could result in termination of services. CFS agreed, adding, "We shouldn't be penalizing the child for Mother being in custody."
The court terminated mother's services, observing she was "not going to be able to do anything between now and [the 12-month period], and she hasn't been able to visit due to her status." The court ordered mother's supervised visits to begin upon her release and told her it would reconsider its ruling terminating services if she filed a section 388 petition. The court advised, "you have to act as quickly as possible when you get released . . . [and] you have to do your part to show me there is a change in circumstances, and it's in the best interest of the child."
The court then set the matter for a permanency planning hearing (366.26 hearing) and gave mother a full writ advisement, stating among other things, "If you wish to preserve your right to appeal the Court's decision, you must file a petition for extraordinary writ." Mother did not seek writ review of the December 2016 order.
At the notice review hearing in February 2017, CFS informed the court that father had been substitute served notice of the 366.26 hearing at his Yucaipa residence. Upon CFS's request for an ICWA ruling, the court found the statute did not apply.
In its section 366.26 report, CFS recommended terminating both parents' rights and selecting adoption with the great-grandparents as D.M.'s permanent plan. The report contained a favorable adoption assessment of the great-grandparents and noted D.M. continued to thrive in their care. It also noted mother and father still had not visited D.M.
Mother was present and in custody at the 366.26 hearing in April 2017. Father did not attend. Mother's counsel objected to termination of her parental rights because D.M. had resided with her before removal and was bonded to her. The court disagreed the parent-child bond exception applied, terminated both parents' rights, and selected adoption as D.M.'s permanent plan.
II
DISCUSSION
A. Termination of Parental Rights
Mother contends we must reverse the order terminating her parental rights because the court erroneously terminated her services at the six-month review hearing. She argues the court improperly terminated her services and set a 366.26 hearing because: (1) CFS "never confirmed what services [she] completed or what progress she made on her case plan" and (2) San Bernardino County has an improper policy of not providing visits to incarcerated parents. There are several problems with mother's argument, but we will address only the most fundamental one—she is attempting to achieve reinstatement of her parental rights by asserting an untimely challenge to the order terminating services at her six-month review. Mother waived her right to question the propriety of the December 2016 order terminating her services by failing to seek writ review.
The principle commonly referred to as the "waiver rule" provides that "an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order." (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151 (Meranda P.).) An order terminating reunification services and setting a 366.26 hearing is not appealable unless: (1) the party appealing the order timely filed a petition for extraordinary writ review; (2) the petition substantively addressed the specific challenged issues and supported those challenges with an adequate record; (3) the petition was summarily denied or otherwise not decided on the merits. (In re X.Z. (2013) 221 Cal.App.4th 1243, 1248-1249, citing § 366.26, subdivision (l), In re Cathina W. (1998) 68 Cal.App.4th 716, 719.)
Mother argues she received ineffective assistance because her counsel failed to object to the reasonableness of services at the six-month review hearing and failed to seek writ review of the December 2016 order. In mother's opening brief, appellate counsel claims one of the attorneys who represented mother before the juvenile court told him that "in San Bernardino County, incarcerated parents in dependency cases are never given any visitation until they are released from custody, and upon release, the parent is only given one hour of visitation per week." Trial counsel apparently agreed with appellate counsel that such a policy is improper. Appellate counsel goes on to say trial counsel refused to provide a declaration to that effect because she had been "'burned'" for doing so in the past. In his own declaration appended to mother's brief, appellate counsel says he has volunteered for the women's prison at the California Institution for Women for approximately 20 years and has "learned that the prison has a vast array of programs that include, but are not limited to: substance abuse, counseling and mental health treatment, anger management, vocational training, parenting classes, and strategies for making good life choices." The foregoing is intended to support counsel's argument that CFS failed to provide reasonable services during the six-month review period because there may have been services available to mother while she was in custody and CFS never established whether she participated in them. Finally, counsel contends In re S. D. (2002) 99 Cal.App.4th 1068 (S. D.) supplies the authority for treating ineffective assistance as good cause for excusing a failure to seek writ review.
Neither S. D. nor any other authority supports excusing mother's failure to seek writ review of the December 2016 order. As a general matter, the waiver rule applies to claims of ineffective assistance of counsel. (S. D., supra, 99 Cal.App.4th at p. 1079 [acknowledging that in general "due process will usually be protected even if the court enforces a waiver of ineffective assistance of counsel in a prior phase of the case"].) In Meranda P., the mother failed to seek writ review before belatedly attempting to appeal an order preceding the 366.26 hearing. (Meranda P., supra, 56 Cal.App.4th at pp. 1148-1150.) As mother does here, she asked the court to excuse her failure to seek writ review on the ground her trial counsel had been ineffective by failing to question the sufficiency of the services at the relevant review hearing. (Id. at p. 1151.) The court disagreed, concluding: "[I]f a parent, for whatever reason, has failed to timely and appropriately raise a claim about the existence or quality of counsel received at a proceeding antedating the .26 hearing, we will apply the waiver rule to foreclose the parent from raising such an objection on appeal from the termination order." (Id. at p. 1160, italics added.) The court held that applying the waiver rule to representational claims was consistent with the goals of dependency and did not violate a parent's due process rights. (Id. at pp. 1151-1155.) "[A]uthorizing parents to attack final appealable orders by means of an appeal from a subsequent appealable order would sabotage the apparent legislative intention to expedite dependency cases and subordinate, to the extent consistent with fundamental fairness, the parent's right of appeal to the interests of the child and the state. [Citation.] The Legislature has made known its desire not to allow the child's future to be held hostage to a postponed appeal." (Id. at p. 1156.)
In S. D., the court created a narrow exception to the waiver rule in situations where the ineffective representation was the failure to recognize the juvenile court lacked dependency jurisdiction. (S. D., supra, 99 Cal.App.4th at pp. 1070-1071 [sole (erroneous) ground for jurisdiction was parents were "small-time crooks" who had recently been incarcerated for credit card fraud].) That exception is not applicable here, as the court properly asserted dependency jurisdiction over D.M. due to, among other things, the physical abuse he suffered in mother's care.
Even if we were inclined to find an exception to the waiver rule (and on these facts we are not) mother could not demonstrate ineffective assistance of counsel in any event. To do so requires a showing "there was a 'determinative difference' in the outcome of the proceeding by reason of the parent's lack of counsel, such that the proceeding was rendered fundamentally unfair to the parent." (Meranda P., supra, 56 Cal.App.4th at p. 1153, italics added.) Trial counsel's failure to make mother's suggested arguments about the inadequacy of services did not prejudice her.
First of all, mother faults CFS for not establishing whether she had participated in services while in custody, but she had the ability to file a section 388 petition informing the court about any services she might have completed. We find it telling appellate counsel submitted a declaration, but mother herself has not attempted to explain her circumstances to either this or the juvenile court. Second, and more importantly, section 366.21 allows a juvenile court to terminate services and set a 366.26 hearing at the six-month review hearing if "the parent has been convicted of a felony indicating parental unfitness." (§ 366.21, subd. (e)(5).) The record demonstrates that right before the six-month review hearing mother was convicted for just such a crime—felony child abuse, which seems from the record to have been based on the physical abuse of D.M. necessitating this dependency. Although the court did not terminate services on that ground, it certainly could have had it the benefit of mother's criminal record to review, as we do on appeal. (See In re Zamer G. (2007) 153 Cal.App.4th 1253, 1271 ["If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion"].) There is no merit to mother's sole challenge to the termination of her parental rights, and therefore we affirm the court's order.
B. ICWA
Mother contends the juvenile court erred by finding ICWA did not apply and failing to order CFS to conduct further inquiry into father's possible Indian ancestry. We do not agree. Mother's suggestion at the detention hearing that father had Indian ancestry did not trigger ICWA's notice requirements.
Congress enacted ICWA in 1978 "'to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children 'in foster or adoptive homes which will reflect the unique values of Indian culture.''" (In re O.K. (2003) 106 Cal.App.4th 152, 155 (O.K.); 25 U.S.C. § 1902.) The court and the parties must follow ICWA's procedural and substantive requirements when an "Indian child" is involved. An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).)
Notice to the tribe is one of ICWA's procedural requirements. "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a), italics added.)
"'The Indian status of the child need not be certain to invoke the notice requirement. [Citation.] Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary [of the Interior].'" (O.K., supra, 106 Cal.App.4th at p. 156.) A juvenile court has "reason to believe" a child is an Indian child where the "agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child." (Ibid., citing Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979)).) However, information that is "too vague, attenuated and speculative" does not trigger the notice requirement. (In re J.D. (2010) 189 Cal.App.4th 118, 125.)
For example, the notice requirement is not triggered when the family member who believes the child might be an Indian child is not his or herself an enrolled member of a tribe, cannot identify a particular tribe, and does not know whether he or she or another family member is eligible for tribal membership. In such situations, appellate courts have found the family member's suspicion of Indian ancestry to be too "nebulous" and "speculative" to give a juvenile court reason to believe the minor is an Indian child. (See, e.g., O.K., supra, 106 Cal.App.4th at pp. 154-157; In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467-1468; In re Z.N. (2009) 181 Cal.App.4th 282, 298.)
"We review the trial court's findings whether proper notice was given under ICWA and whether ICWA applies to the proceedings for substantial evidence." (In re D.N. (2013) 218 Cal.App.4th 1246, 1251.) Mother asserts father's representation to the court at the detention hearing that he had Indian ancestry on his father's side was sufficient to trigger the notice requirement. This is a misrepresentation of the record. Father did not make a single appearance in this case and the detention hearing was no exception. The minute order and the appearances in the reporter's transcript of that hearing demonstrate father was not present. The reporter's transcript attributes the statement that D.M. "does [have Indian ancestry] on his father's side" to father, but context makes clear this was an inadvertent error and it was in fact mother who said it. The court tried to learn additional information from mother about this possible Indian ancestry but she had nothing more to provide. The court wondered if father was a member of the Paiute tribe because mother said father lived in Utah, but mother said she did not know. In other words, mother could not identify a particular tribe, did not know if father was eligible for tribal membership, and was not herself a member of a tribe. As a result, her bare assertion of Indian ancestry on father's side was too speculative and vague to give the juvenile court reason to believe D.M is an Indian child.
Mother's opening brief contains multiple other patent misrepresentations of the record. For example, appellate counsel argues mother's "specific" problems were "choosing poor partners . . . and [her] mental health," and states the juvenile court dismissed the petition allegation that D.M. was injured while in her care. This is false—the court sustained the section 300, subdivision (a) allegation that D.M. was physically abused in her care. In addition, appellate counsel argues the juvenile court violated father's due process by terminating his parental rights without making any detriment findings against him. In support, he states father was a nonoffending parent and the juvenile court had struck all allegations against him. This is also false. At disposition, the court found multiple section 300, subdivision (b) allegations against father true and found placing D.M. in his care would be detrimental to the child; at the six-month review hearing, the court found father had made insufficient progress on his case plan and placing D.M. in his care continued to be detrimental. Appellate counsel also claims father was in custody at the time of the 366.26 hearing and "was not transported to the hearing where his parental rights were terminated." In fact, father was residing in Yucaipa, was given notice, and decided not to attend. We take this opportunity to emphasize the importance of fact checking and reiterate an attorney's duty to "employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Bus. & Prof. Code, § 6068, subd. (d).)
Next, mother contends the record contains no indication CFS made "any effort" to investigate father's Indian ancestry. We disagree. Father purposely avoided CFS throughout the dependency. Early on, he called the social worker and left a message saying he wanted custody of D.M. and apparently (or so the social worker was told) came to court on the day of the detention hearing, but never went inside the courtroom. The social worker left a voice message on his phone and CFS sent notice of the jurisdiction and disposition hearing and the ICWA-020 form to the Yucaipa address where it later confirmed he was living. But after his single phone call, he never reached out to CFS again, let alone completed the ICWA-020 form or gave CFS any indication he had Indian ancestry. Presumably this is because he learned of the allegations against him and wanted nothing to do with the court proceedings.
CFS's duty to inquire into ICWA's application extends to the minor's parents. (E.g., In re S.B. (2005) 130 Cal.App.4th 1148, 1161 ["as long as the social worker did inquire of the parents, and as long as the parents failed to provide any information requiring followup, she had no further duty of inquiry"].) CFS provided father with the ICWA-020 form and repeatedly tried to contact him during the dependency. It is not the agency's fault he avoided those efforts.
Finally, we note mother did not object to the court's ICWA finding at the February 2017 notice review hearing and did not identify an ICWA issue in her notice of appeal. In addition, she provides us with no information about whether D.M. may have Indian ancestry in the form of a declaration from herself or her counsel. As this court has previously noted, "ICWA is not a 'get out of jail free' card dealt to parents of non-Indian children . . . 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 are implicated in any way." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [no reversal required for alleged ICWA violations if parent cannot demonstrate prejudice].) On this record, we cannot conclude mother triggered ICWA's notice requirement or that CFS's investigation was inadequate.
III
DISPOSITION
We affirm the order terminating parental rights and the ruling that ICWA does not apply.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. FIELDS
J.