Opinion
A157450 A157665
03-03-2020
In re J.F., et al., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.F., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. 17JD0964 & 17JD0965)
J.F. (Mother) and S.F. (Father) appeal following the juvenile court's termination of their parental rights to minors S.F. (born 2015) and J.F. (born 2016) (collectively, Minors). Mother and Father argue the juvenile court erred in finding the San Mateo County Social Services Agency (Agency) satisfied its obligations under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901, et seq.), and in granting the de facto parent excessive procedural rights. We affirm.
BACKGROUND
In November 2017, the Agency filed Welfare and Institutions Code section 300 petitions for Minors following a domestic violence incident between Mother and Father for which Father was arrested. Minors were detained and placed together in foster care.
All undesignated section references are to the Welfare and Institutions Code.
In February 2018, a combined jurisdiction/disposition hearing was held. The juvenile court sustained allegations that Father threw a shoe at Mother while she was holding J.F. and while S.F. was present; in a separate incident, Father slapped and kicked Mother while she was holding S.F. and while J.F. was present; and Mother had previously received over six years of substance abuse and domestic violence services for her five oldest children (Minors' half-siblings) but had not benefitted from these services. The court ordered reunification services for both Mother and Father.
According to Agency reports filed in advance of the November 2018 six-month review hearing, during the review period Mother missed the vast majority of her drug tests, tested positive for methamphetamine several times, and had not tested negative a single time. Mother failed to complete two outpatient and one residential drug treatment program, and had only recently enrolled in another residential program. Father was incarcerated for most of the review period. After his release from prison, Father failed to attend an intake appointment for domestic violence classes, missed several drug tests, and tested positive for THC. The juvenile court terminated reunification services for both parents and set a section 366.26 hearing. Neither Mother nor Father filed a writ petition seeking review of the order. (See Cal. Rules of Court, rule 8.452.)
In February 2019, both Mother and Father filed section 388 petitions seeking an additional six months of services. Father's petition stated he had "consistently" engaged in services since his release from prison and was "in the process" of entering a residential treatment program. Mother's petition stated she was currently in jail and participating in services there. Later that month, a letter Father sent to Mother was intercepted by the jail; in the letter, Father threatened to "kill all these foster parents" if Minors were taken away. In April 2019, the juvenile court denied the petitions, finding both Mother and Father failed to demonstrate changed circumstances or that additional services were in Minors' best interests. Mother and Father appealed the court's orders denying their petitions for additional services (No. A157450).
She had been incarcerated on grand theft charges.
Father subsequently filed a section 388 petition seeking relative placement consideration for the paternal grandmother. The juvenile court had previously denied placement with the paternal grandmother, finding she had not completed the application process after the Agency made reasonable efforts to assist her. Father's petition stated she had subsequently moved and completed required classes. The juvenile court denied Father's petition, finding it failed to show changed circumstances because the paternal grandmother was still not approved as a placement for Minors, and further finding that placement with the paternal grandmother was not in Minors' best interests.
In reports filed in advance of the June 2019 section 366.26 hearing, the Agency described Minors as "young, healthy, resilient," and adoptable. Minors were attached to their caregiver, with whom they had been since the beginning of the dependency case. Their caregiver was an experienced parent, a social worker, and committed to adopting Minors. The juvenile court found Minors adoptable, terminated Mother's and Father's parental rights, and designated Minors' caregiver as the prospective adoptive parent. Mother and Father both appealed from the order terminating their parental rights, and Father also appealed from the order denying his section 388 petition for relative placement (No. A157665).
We consolidated the appeals for briefing, argument, and decision.
DISCUSSION
I. ICWA
Appellants argue the juvenile court erred in finding the Agency complied with ICWA's inquiry and notice requirements.
"[S]ection 224.3, subdivision (c), provides that if the court or social worker knows or has reason to know that an Indian child is involved in dependency proceedings, the social worker must make further inquiry, as soon as practicable, by interviewing the parents, Indian custodian and extended family members to gather the information required . . . to be provided to the relevant tribes. As pertinent here, that information includes '[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.' [Citation.] The social services agency must make a meaningful effort to contact specified family members who might have pertinent information." (In re K.R. (2018) 20 Cal.App.5th 701, 706-707.)
Neither Father nor Mother had knowledge of Indian ancestry. However, according to an Agency report filed February 23, 2018, the paternal grandmother informed the Agency in December 2017 of Minors' potential eligibility in the Chickasaw Nation. The Agency report provides as follows: "The undersigned attempted to get information from the grandmother on December 27 and 29, 2017 and January 2 and 3, 2018. [¶] Notice was sent on January 12, 2018 to the Chickasaw Nation and Bureau of Indian Affairs. On January 23, 2018, an update with additional information was sent to the Chickasaw Nation and BIA." The notice identified the paternal great-grandmother as being affiliated with the Chickasaw Nation, but listed as unknown all identifying information other than her name. The notice also identified the paternal grandfather as being affiliated with the Chickasaw Nation, but similarly listed as unknown all identifying information other than his name. The Chickasaw Nation subsequently informed the Agency that Minors were not eligible for citizenship in the Chickasaw Nation.
Appellants argue the Agency failed to establish it made a reasonable inquiry into all available information about Minors' potential Chickasaw ancestry, and that the ICWA notice was inadequate because it omitted obtainable information. Appellants argue that, although the Agency report quoted above suggests the Agency was unable to contact the paternal grandmother prior to sending notice, the record shows the paternal grandmother was in contact with the Agency later in the proceedings and the Agency should have renewed its ICWA inquiry at that time. Appellants further argue the Agency should have made efforts to contact other paternal relatives. Appellants point to cases holding the usual presumption, on a silent record, of facts in favor of the judgment does not apply in ICWA cases. (See In re K.R., supra, 20 Cal.App.5th at p. 709 ["[A] social services agency has the obligation to make a meaningful effort to locate and interview extended family members to obtain whatever information they may have as to the child's possible Indian status. [Citation.] The agency cannot omit from its reports any discussion of its efforts to locate and interview family members who might have pertinent information and then claim that the sufficiency of its efforts cannot be challenged on appeal because the record is silent."].)
Appellants fail to note a relevant discussion in an earlier Agency report, filed January 5, 2018. This report provides that the paternal grandmother told the Agency on December 20, 2017, "that on [Minors'] paternal grandfather's side, the paternal great-grandmother and paternal great-aunt were registered with the [Chickasaw] tribe. However, [the paternal grandmother] did not have the information. [¶] On December 27, 2017, on December 29, 2017, and on January 2, 2018 the undersigned attempted to get the information or a phone number for a family member on the paternal grandfather's side of the family from [the paternal grandmother], however, the grandmother did not have the information. On January 3, 2018, she stated the family has not returned her phone calls but she would reach out again and hopefully get an answer by January 3 or 4, 2018."
The record thus affirmatively shows that the Agency was receiving information from the paternal grandmother and made diligent efforts to gather information from the paternal grandfather's relatives before ICWA notice was sent. This case is easily distinguishable from In re K.R., supra, 20 Cal.App.5th 701, relied on by appellants, in which the record was silent as to whether the agency contacted various paternal relatives who were either readily available or for whom the agency had a last known address. (Id. at pp. 707-708.) We find no error in the juvenile court's ICWA inquiry or notice findings.
II. De Facto Parent Participation
Appellants argue the juvenile court erred by affording excessive procedural rights to the de facto parent and allowing her access to confidential documents in the juvenile court file. We find the argument forfeited and, in any event, any error is harmless.
A. Additional Background
In October 2018, the juvenile court granted Minors' caregiver de facto parent status, appointed counsel for the de facto parent, and authorized the de facto parent and counsel to have access to the juvenile court files. In post-disposition hearings, counsel for the de facto parent made objections, questioned witnesses, and argued on issues including the frequency of appellants' visitation, whether a bonding study should be conducted, relative placement, appellants' petitions for additional services, and Minors' adoptability. Appellants made no objections to the de facto parent's participation in these hearings or to her apparent access to confidential Agency reports.
B. Analysis
"De facto parents are not part of any adversarial aspect of a dependency case. ' "De facto parent" means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period.' [Citation.] 'The purpose of conferring de facto parent status is to "ensure that all legitimate views, evidence and interests are considered in dispositional proceedings involving a dependent minor." ' [Citation.] While de facto parents have 'standing to participate as parties' [citation], their role is limited and they do not enjoy the same due process rights as parents. [Citations.] De facto parents do not have an automatic right to receive the Agency's reports and other documents filed with the court." (In re B.F. (2010) 190 Cal.App.4th 811, 817, fns. omitted.)
As an initial matter, appellants did not object below to the de facto parent's participation in the section 388 and section 366.26 hearings or access to Agency reports filed with respect to these hearings. "In dependency litigation, '[a] party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court.' " (In re T.G. (2013) 215 Cal.App.4th 1, 13-14.) Appellants have forfeited this challenge.
We also query whether appellants can challenge the de facto parent's access to records in the juvenile court file because appellants did not appeal from the October 2018 court order authorizing such access. " ' "[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order." [Citation.] An appeal from the most recent order in a dependency matter may not challenge earlier orders for which the time for filing an appeal has passed." ' " (In re Isaiah W. (2016) 1 Cal.5th 1, 10.) We will assume, without deciding, that appellants can challenge the de facto parent's access to Agency reports filed with respect to the appealed-from section 388 and section 366.26 proceedings.
Even if the challenge were not forfeited, any error is harmless. We reject appellants' contention that any error is reversible per se. Although appellants assert the de facto parent's participation "had a detrimental impact on the development of the record," they fail to explain why it was detrimental or rendered the proceedings unfair. The only specific incidents cited by appellants are comments by the juvenile court that speaking objections were unnecessary and the de facto parent's counsel's line of questioning was cumulative and an undue consumption of time. Appellants fail to explain why unnecessary objections or cumulative questioning denied appellants a right to a fair hearing. Appellants' reliance on criminal cases, without explaining their applicability in the dependency context, is an approach that has been explicitly questioned by our Supreme Court. (In re James F. (2008) 42 Cal.4th 901, 915-916 ["[S]ignificant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases."].) In any event, cases cited by appellants involving errors resulting in omissions from the record are inapposite here, where the de facto parent's participation resulted in additional (and identifiable) evidence before the court. (See People v. Mercant (1989) 216 Cal.App.3d 1192, 1196 ["Since a current probation report was not before the court, the case must be remanded for a new sentencing hearing."], disapproved on another ground by People v. Bullock (1994) 26 Cal.App.4th 985.)
Instead, any error was one of state law, reversible only if " 'it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.' [Citation.] 'The burden is on the appellant in every case affirmatively to show error and to show further that the error is prejudicial.' " (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1322-1323.) Appellants fail to identify any specific objections, questions, or other conduct by the de facto parent (other than the speaking objections and cumulative questioning noted above), or to explain how they could have impacted the outcome of the appealed-from proceedings. Nor do appellants make any argument that their section 388 petitions were meritorious or that their parental rights should not have been terminated. Appellants have failed to establish prejudice from any error regarding the de facto parent's procedural rights or access to juvenile court records.
DISPOSITION
The orders are affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.