In re L.J.
Filed 5/1/13 In re L.J. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
In re L. J., a Person
Coming Under the Juvenile Court Law.
C071919
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
C. W. et al.,
Defendants and Appellants.
(Super. Ct. No.
JD231066)
In re L. J., a Person
Coming Under the Juvenile Court Law.
C072166
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
C. W.,
Defendant and Appellant.
(Super. Ct. No.
JD231066)
In this
case, a juvenile court referee made
an order terminating the parental rights of C.W. (father) and La.J. (mother) as
to minor L.J. (Welf. & Inst. Code, §
366.26.) (Case No. C071919.) Both parents filed notice of appeal from that
order. However, father simultaneously
moved for rehearing or reconsideration of the order (§ 252; Code Civ. Proc., § 1008),
alleging the hearing proceeded in his absence despite his voice mail message to
the court clerk advising that he would be late.
The referee purported to grant the motion and to set aside the
order. At a subsequent hearing attended
by father, the referee made a new order purporting once again to terminate the
parental rights of both parents. Father
alone filed a notice of appeal from this order.
(Case No. C072166.)
After
receiving father’s notice of appeal from the second order, we requested letter
briefs from the parties as to whether the first appeal was moot and
consolidated the appeals on our own motion and.
Having read and considered those briefs, we conclude that the appeal in
case No. C071919 is not moot because the referee’s original order terminating
parental rights was final and conclusive.
We also conclude that because all acts done by the referee after issuing
that order were void for lack of jurisdiction, the appeal in case No. C072166
must be dismissed.
On the
merits, the parents contend that the matter must be remanded due to failure of
compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et
seq.). Mother, joined by father, also
contends that the juvenile court abused its discretion by denying mother’s
request for placement of the minor with the maternal grandmother. Respondent Sacramento County Department of
Health and Human Services (the Department) disputes both contentions and
asserts that the disentitlement doctrine bars the parents’ appeals because they
actively concealed the minor’s whereabouts for over a year.
We conclude
(1) the disentitlement doctrine does not apply; (2) assuming mother has
standing to attack the denial of placement with the maternal grandmother, the
court did not err by denying that placement; and (3) a limited ICWA remand is
required. We reverse in case No. C071919
for further proceedings limited to ICWA and dismiss father’s appeal in case No.
C072166.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2010, the Department filed a section 300
petition as to the minor, alleging the minor (born in early 2010) was at
substantial risk of physical harm in
that, while the minor was riding in mother’s car, mother physically abused the
minor’s older half sibling D.J. The
minor was also at substantial risk of physical harm, abuse, and/or neglect in
that D.J. and the minor’s three siblings were adjudicated dependent children
due to domestic violence between father and mother, and to mother’s substance
abuse problem; as to the three siblings, family reunification services were
terminated in May 2010. The parents had
failed to maintain contact with the Department and had failed to make the minor
available, insisting that she resided with relatives out of county.
In the
Department’s application for a protective
custody warrant, the social worker’s declaration contained the following
information:
The minor’s
three siblings were court-ordered to a permanent plan of adoption pending an
upcoming section 366.26 hearing.
On October
18, 2010, the Department’s Division of Child Protective Services (CPS) received
a referral alleging that on October 14, 2010, the minor’s maternal grandmother,
Barbara J., had kicked the minor’s half sibling D.J. out of her home. D.J. stayed with a friend before being
transported to the Children’s Receiving Home on October 17, 2010, where he was
released to mother. Thereafter, the
incident described in the section 300 petition occurred, and the court issued a
protective custody warrant for him.
parents were concealing the minor from CPS.
Mother
reported to the social worker that the minor was with a relative in the Bay
Area but would not disclose the relative’s name or location.
According
to the family reunification social worker, mother was not complying with her
substance abuse and domestic violence services, and had not returned the social
worker’s calls in months.
Father had
been booked and arrested on a no-bail warrant on October 17, 2010, and was to
be released on October 22, 2010.
CalWORKs
staff stated that mother had an active case, was receiving aid for the minor
and D.J., and had been seen with the minor at the office the previous month.
A
protective warrant was issued. A
detention report, filed thereafter on October 27, 2010, contained
additional information. Father was
released from custody but remained on informal probation until September 11,
2013. The social worker attempted twice
on October 22, 2010, to execute the warrant for the minor at the residence
where father lived with the paternal grandmother, Patricia B.; the home
appeared “closed up,†and notices were left there for the parents. On October 23, 2010, the social worker
attempted to execute the warrant at the home of the maternal grandmother,
Barbara J.; again, the home appeared “closed up,†and a notice was left for
mother inside the screen door. Up until
October 19, 2010, the social worker had been in emergency telephone contact
with mother; mother would not provide an address, saying she was homeless and
was going to different hotels. On and
after October 20, 2010, the social worker left multiple messages for mother on
her cell phone informing her of the October 27, 2010, court date; no calls were
returned. There were no relatives to
consider for placement: Barbara J.’s
home had not passed a kinship evaluation, and Patricia B. could not care for
the minor due to poor health.
After the
initial hearing on October 27, 2010, the matter was repeatedly continued
because the minor had not been located.
On November 18, 2010, the juvenile court removed the matter from
calendar but informed the parents that the protective custody warrant for the
minor remained in effect.
On April 3,
2012, the minor was found in the custody of the parents, who claimed they had
not known there was a warrant out on the minor and had thought the case was
closed. The Department filed an amended
section 300 petition, which added the allegations that mother’s reunification
services as to D.J., and the parents’ rights as to the minor’s three siblings,
had been terminated.
Father filed
a Judicial Council form ICWA-020 claiming Cherokee heritage. Mother denied Indian ancestry.
At the
initial hearing on April 6, 2012, the juvenile court found father was the
minor’s presumed father and ordered him to complete the Indian ancestry questionnaire
(or “supplemental questionnaireâ€) and return it to the Department within two
days.
On April
11, 2012, the juvenile court ordered the minor detained. The court ordered father to complete and
return the supplemental questionnaire “today.â€
On April
23, 2012, ICWA paralegal Tony Ringor declared that because father had not
responded to any attempts to contact him, the three Cherokee tribes had been
sent only the limited information available to Ringor as to the parents’
ancestry: the names, addresses, and
birth dates of the paternal and maternal grandmothers.
The
Department’s jurisdiction/disposition report recommended placement of the minor
outside the home and bypassing services to the parents (mother pursuant to
§ 361.5, subd. (b)(10), (11), & (13); father pursuant to § 361.5,
subd. (b)(10) & (11) only).
The report
stated that the parents continued to claim they had been unaware there was a
warrant out for the minor. They denied
all allegations of current substance abuse and domestic violence.
If the
minor was not returned to the parents, mother wanted her placed with the
maternal grandmother, Barbara J. The
maternal grandmother wanted placement, and father and other members of the
family would support it. The kinship
unit had approved the maternal grandmother’s home for placement as of April 10,
2012.
The maternal grandmother, a widow with
four children and eight grandchildren, had recently retired after 30 years at
Kaiser Permanente. She lived alone in a
three-bedroom, two-bathroom home. She
could use the maternal aunt to help with childcare if needed. She was diabetic but indicated the condition
was under control. She was willing to
adopt the minor or to serve as her legal guardian.
The social
worker had “concerns†about this proposed placement. First, the maternal grandmother did not call
CPS after learning that CPS was looking for the minor, apparently because she
believed mother’s story that the case was closed; the maternal grandmother said
she had no control over mother. Second,
the maternal grandmother had kicked D.J. out of her home; she had failed a
kinship assessment as to him and had never been assessed as to the minor’s
siblings. Third, her diabetes might not
be under control: the fire department
was called to the maternal grandmother’s home on February 18, 2012, in response
to a report that she was incoherent and might be having a “diabetic episode.â€
On May 4,
2012, ICWA paralegal Ringor declared that one of the three Cherokee tribes had
returned a negative response and the other two had not yet responded.
On the same
date, the juvenile court held a prejurisdictional status conference but
continued it because father was allegedly in the hospital.
received father’s supplemental questionnaire, the court reordered him to comply
with the prior order to complete and return the questionnaire. The court ordered the Department to analyze
whether services should be denied to the parents under section 361.5,
subdivision (b)(15).
name="_ftnref4" title="">[4]
At the rescheduled
prejurisdictional status conference on May 11, 2012, the juvenile court asked
father’s counsel whether the information in Judicial Council form ICWA-030 (the
form sent to the tribes) was “complete and accurate.†Counsel said “Yes.†Counsel also said, “As to [father] the
information . . . that appears on the ICWA 30 [sic] is correct.â€
Father’s counsel said father had
completed the supplemental questionnaire and “placed it in the mailbox
downstairs.†The court observed that
that mailbox was for the use of court staff only, so anything placed there
would not have reached the Department.
The court
set an ICWA compliance hearing for July 13, 2012.
The parents
requested placement with the maternal grandmother. The court tentatively denied the request but
promised to revisit the issue. The court
expressed concern that the maternal grandmother had failed a kinship screening
as to D.J. and that emergency services had been called to her home in February
2012. The court also noted that because
it needed to consider concurrent planning efforts, the maternal grandmother
should undergo an adoption home study as soon as possible.
On May 17,
2012, ICWA paralegal Ringor declared that the second of the three Cherokee
tribes had returned a negative response; the third had not yet responded.
The
Department filed an addendum recommending placement of the minor with the
maternal grandmother. Her home had not
been approved as to D.J. because D.J.’s father was living there, but he had
since left.
At the
pretrial jurisdiction/disposition conference on May 25, 2012, the juvenile
court noted that that as of the day before, the ICWA paralegal still had not
received father’s supplemental questionnaire.
The court
stated it was still concerned as to whether placement with the maternal
grandmother was consistent with the best interest of the minor, given “the need
to consider concurrent planning.†The
court was also concerned about “the potential protection issues†in that there
was evidence a social worker had tried to serve the protective custody warrant
at the maternal grandmother’s home, yet she now claimed she did not know CPS
was looking for the minor. The court
reserved further consideration of this issue for the jurisdiction/disposition
hearing.
The
contested jurisdiction/disposition hearing took place on June 1, 2012.
Father
testified that the parents did not realize there was a warrant out for the
minor because her case came up together with the ongoing cases of her siblings,
on which the parents were focused. When
they heard that the minor’s case was removed from calendar, they concluded it
had been dropped. The minor was living
with an aunt in the Bay Area for most of the time she was supposedly missing.
Father
claimed he and mother had no relationship now.
He was homeless but looking for housing, and had been employed for three
weeks. He claimed he was doing
visitation and services insofar as he had been given them. He denied domestic violence or current
substance abuse by himself or mother.
Placement with the maternal grandmother was acceptable to him.
Mother’s
counsel and the minor’s counsel also supported placement with the maternal
grandmother.
The
juvenile court bypassed reunification services to mother under the provisions
of section 361.5, subdivision (b)(10), (11), (13), and (15) and to father
under section 361.5, subdivision (b)(10), (11), and (15), and set a
section 366.26 hearing on August 17, 2012.
The court
again denied placement with the maternal grandmother but noted, “the Department
can continue to assess this [and t]he grandmother is certainly free to get an
adoption home study[.]†The court
acknowledged the statutory preference for relative placement (§ 361.3), but
found that it would not be in the minor’s best interest for the following
reasons: (1) the maternal grandmother
knew of the warrant for the minor and frustrated its execution, which also put
her credibility in question; (2) when the maternal grandmother had care of
D.J., things had gone wrong; (3) the maternal grandmother’s state of health was
still undetermined; and (4) given the impending section 366.26 hearing,
preferential consideration must go to a home that could adopt the minor.
The ICWA
paralegal filed an informational memorandum on July 5, 2012, which stated that
the last of the Cherokee tribes had returned a negative response.
At a
combined ICWA compliance hearing and section 366.26 status review hearing on
July 13, 2012, the juvenile court found the minor was not an Indian child.
At a
placement hearing on July 20, 2012, the juvenile court observed that the
Department was now pursuing placement in the home of one of the minor’s
siblings who had been adopted. County
counsel said the minor had not yet been placed there because the home did not
currently qualify as an adoptive home (the prospective foster parents had given
up their foster-care license after adopting the minor’s sibling) or an NREFM
(nonrelative extended family member) placement; the Department was
investigating how to get approval for the placement. The minor’s counsel supported the
Department’s recommendation. Father’s
and mother’s counsel objected but did not offer argument or propose
alternatives.
Noting that
the maternal grandmother was present, the court invited her to “talk to the
Court.â€
A CPS
investigative social worker came to the maternal grandmother’s home before the
minor was detained but did not mention that she had a warrant for the
minor. She said only that she was there
“to look in on the well care [sic] of
Baby [L.]â€
D.J.’s
allegations that the maternal grandmother beat him and that she was a drug
addict were false. Nevertheless, even
though he had lied about her, she loved him and still took care of him.
Her
diabetes was not a problem. Her doctor
had given her a “bill of health.â€
She loved
all of her grandchildren and fought for the chance to take care of them; being
retired, she could easily take care of the minor. It was painful to her that all of mother’s
children had been “taken away.â€
The
juvenile court replied that the maternal grandmother’s claim that the CPS
social worker had not mentioned a warrant conflicted with the social worker’s
statement that she had been there attempting to execute a warrant, which is
part of an investigative social worker’s job.
The court was concerned about “the willingness to cooperate with CPS,
with the Court, and ensure that . . . the baby is kept safe from her
parents.†The social worker’s statement
created an inference that the maternal grandmother had been “less than
cooperative†in a case where the minor was absent from the court’s jurisdiction
with an outstanding protective custody warrant “for a very considerable period
of time.â€
D.J.’s
statements indicated that he might have suffered inappropriate corporal
punishment from several relatives, including the maternal grandmother, and that
there was a lack of “appropriate care in the home.â€
It mattered
that law enforcement had been called to the maternal grandmother’s home due to
concerns about her health because the minor was “in need of a forever home
now.†If the court placed the minor with
the maternal grandmother, it would take a year or so to determine whether the
minor could stabilize there and whether the concerns about the maternal grandmother’s
health and D.J.’s allegations were unfounded.
But the minor had already waited a long time for stability and
permanence.
For all of
these reasons, it was in the minor’s best interest to proceed with placement in
a home that did not have the “difficulties†apparent in the maternal
grandmother’s home.
The
Department’s section 366.26 report, filed August 7, 2012, recommended
termination of parental rights and adoption.
The minor was generally adoptable.
The Department still planned to place her with her adopted sibling once
the caretakers had updated their foster care license. Their visitation with the minor had gone
well. They were eager to take her into
their home and to provide permanency through adoption.
On the
morning of August 17, 2012, the juvenile court held a section 366.26
hearing. Neither parent was
present. Father’s counsel, who did not
know why father was absent, requested a continuance, but the court denied the
request for lack of good cause. Over the
objection of the parents’ counsel, the court ordered the termination of
parental rights and a permanent plan of adoption.
On August
21, 2012, the juvenile court entered its order in writing.0
On August
23, 2012, father’s counsel filed a notice
of appeal from the order.
On the same
date, father’s counsel filed a “Notice of Motion and Motion for Reconsideration
Pursuant to Code of Civil Procedure Section 1008.†The motion also cited Welfare and
Institutions Code section 252, which provides in part: “At any time prior to the expiration of 10
days after service of a written copy of the order and findings of a referee, a
minor or his or her parent or guardian . . . may apply to the juvenile court
for a rehearing.â€
title="">[7]
The motion
asserted that, unknown to counsel at the time of the hearing, father had called
the courthouse and left a voice mail message with the court clerk at 8:44 a.m.,
advising he would be late to court.
Father requested a rehearing so that he could be present for the proceedings
and participate in the section 366.26 hearing.
On August
24, 2012, Referee Hertoghe set the motion for reconsideration for hearing on
August 31, 2012.
At the
hearing on August 31, 2012 (at which father was present, but not mother),
Referee Hertoghe granted reconsideration, set aside the order terminating
parental rights, and set a contested section 366.26 hearing on September 11,
2012.
On
September 5, 2012, mother, in propria persona, filed a notice of appeal from
the August 17, 2012, order terminating parental rights.
On
September 11, 2012, Referee Hertoghe held a contested section 366.26
hearing. The parents were present. Neither presented evidence, but both made
unsworn statements (having been advised that the court would not consider such
statements as evidence). The parents’
counsel argued that termination of the parents’ relationships with the minor
would be detrimental to her. Referee
Hertoghe once again ordered the termination of parental rights.
Father
alone filed a notice of appeal from the second order terminating parental
rights.
DISCUSSION
I
Respondent
contends that the disentitlement doctrine bars this appeal. We disagree.
“ ‘The
disentitlement doctrine has been applied to deprive a party of the right to
present a defense as a result of the litigant’s violation of the processes of
the court, withholding of evidence, defaulting on court-imposed obligations,
disobeying court orders, or other actions justifying a judgment of
default. [Citation.] The case for application of the doctrine is
most evident where . . . the party is a fugitive who refuses to comply with
court orders or make an appearance despite being given notice and an
opportunity to appear and be heard.
[Citation.]’ †(
82 Cal.App.4th 1224, 1229 (Kamelia S.).) Though typically applied against fugitives
from the courts, disentitlement may also be imposed on a nonfugitive party “who
has signaled by his conduct that he will only accept a decision in his favorâ€
and will frustrate any attempt to enforce a judgment against him. (Polanski
v. Superior Court (2009) 180 Cal.App.4th 507, 532 (
The
doctrine is “not an automatic rule but a discretionary tool of the courts that
may only be applied when the balance of all equitable concerns leads the court
to conclude that it is a proper sanction for a party’s flight.†(Polanski,
533.) “In a noncriminal context, courts
routinely decline to disentitle litigants on the basis of contempt, fugitive
status, or noncompliance with court orders when the issues raised by the
litigant entail interests beyond the personal of the individual petitioner,
such as the welfare of minor children . . . .â€
(Id. at p. 536.)
The
Department asserts that because the parents absconded with the minor and
concealed her from the courts for over a year, they are disentitled to pursue
this appeal—even though their misconduct ended in April 2012, they have
submitted themselves and the minor to the juvenile court’s jurisdiction since
then, and the minor is no longer in their custody. We disagree.
The
Department relies only on Kamelia S.,
supra, 82 Cal.App.4th 1224, while
acknowledging the case is distinguishable.
Indeed it is. In
absconded with the minor while his appeal
from the juvenile court’s order removing her from his custody and placing her
in foster care was pending, and the whereabouts of the father and the minor
were unknown when the appellate court considered the case. (Id.
at p. 1226.) In other words,
hearing, he “ ‘[stood] in an attitude of contempt to legal orders and processes
of the courts of this state.’
[Citation.]†(
We conclude
that “the balance of all equitable concerns†(Polanski, supra,
180 Cal.App.4th at p. 533) does not justify applying the disentitlement
doctrine here.
II
Having determined that the
parents may pursue their appeals, we must decide which appeal(s). We conclude that the operative appeals are
those in case No. C071919, because the order from which those appeals were
taken—the first order terminating parental rights—was not set aside in the manner
required by law, and thus became final and conclusive. Therefore, the court’s second order
terminating parental rights, from which father’s appeal in case No. C072166 is
taken, was void, and that appeal must be dismissed.
“Any order
of the court permanently terminating parental rights under this section shall
be conclusive and binding upon the child [and] upon the parent or parents . . .
. After making the order, the juvenile
court shall have no power to set aside, change, or modify it, except as provided
in paragraph (2)[
construed to limit the right to appeal the order.†(§ 366.26, subd. (i)(1).) Thus, once the order of August 17, 2012,
became final, the juvenile court could not set it aside. (In re
R.S. (2009) 179 Cal.App.4th 1137, 1152 (R.S.).)
The time
when that order became final is determined by sections 250, 252, and 254, which
deal with juvenile court referees’ orders and the means of rehearing them. As we shall explain, because father did not
follow the required procedure for seeking and obtaining rehearing of the
referee’s order, it became final 10 days after notice of the order was served
on the parties—that is, on or around August 31, the date when the referee
purported to set the order aside.
“Except as
provided in Section 251[
specified in Section 249 [i.e., an order removing a minor from his or her home]
shall become immediately effective, subject also to the right of review as
hereinafter provided, and shall continue in full force and effect until vacated
or modified upon rehearing by order of the judge of the juvenile court. In a case in which an order of a referee
becomes effective without approval of a judge of the juvenile court, it becomes
final on the expiration of the time allowed by Section 252 for application for
rehearing, if application therefor is not made within such time
not within such time ordered a rehearing pursuant to Section 253.†(§ 250, italics added; see
1085, 1093.)
“At any
time prior to the expiration of 10 days after service of a written copy of the
order and findings of a referee, a . . . parent . . . may apply to the juvenile
court for a rehearing. That application
may be directed to all or to any specified part of the order or findings, and
shall contain a statement of the reasons the rehearing is requested. If all of the proceedings before the referee
have been taken down by an official reporter, the judge of the juvenile court may, after reading the transcript of
those proceedings, grant or deny the application. If proceedings before the referee have not
been taken down by an official reporter, the application shall be granted as of
right. . . .†(§ 252, italics added.)
“
referee shall be before a judge of the juvenile court and shall be conducted de
novo.†(§ 254, italics added.)
Here, the
referee orally ordered the termination of parental rights on August 17,
2012. On August 20, 2012, the court
clerk notified the parents in writing of their right to appeal. On August 21, 2012, the referee entered her
order in writing.
name="_ftnref11" title="">[11] On August 23, 2012, father simultaneously
filed his notice of appeal and “motion for reconsideration†(or rehearing).
Father’s
motion did not specify that it must be heard by a judge of the juvenile
court. His quotation of section 252
omitted the sentence that says so. Nor
did the motion cite section 254, which likewise provides that only a judge of
the juvenile court can rehear a referee’s orders. Thus, by omission, the motion misled the
referee into overlooking the required procedure for rehearing her order.
The referee
purported to hear and grant father’s motion and to set aside her order
terminating parental rights within the 10-day time frame required by section
252. But under sections 252 and 254,
only a judge of the juvenile court had the authority to do so. The referee’s actions, done without subject
matter jurisdiction, were void. (See
(1941) 17 Cal.2d 280, 288.) Since they
were void, not merely voidable, the parties’ consent to the referee’s acts or
waiver of any jurisdictional defect did not create jurisdiction, and we may
consider the issue de novo. (
436, 447.)
Once the
referee’s original order terminating parental rights became final, the juvenile
court had no power to set it aside or to make a new order purporting to
terminate parental rights thereafter. (§
366.26, subd. (i)(1); R.S.,
p. 1152.) Therefore, the referee’s
second order purporting to terminate parental rights was also void. Father’s appeal in case No. C072166, which is
taken from that order, must be dismissed.
III
Mother, joined by father,
contends the juvenile court’s denial of placement with the maternal grandmother
“must be reversed in view of the clear legislative preference for relative
placement.†Respondent replies that this
contention is procedurally barred and that the court did not abuse its
discretion in denying the placement request.
We conclude the contention is properly before us but fails on the
merits.
Procedural arguments
Respondent asserts (1) neither
parent appealed from “the July 20, 2012 placement order or any other placement
order,†(2) appeal of “the June 1, 2012 relative placement order is time
barred,†(3) mother lacks standing to appeal “the July 20, 2012 order regarding
placement of the child because she had been bypassed for reunification services
at the disposition hearing and parental rights were terminated prior to
appeal,†and (4) mother forfeited the relative placement issue. These arguments are unpersuasive.
We agree
with mother that the operative order is the order made at the July 20, 2012,
placement hearing. At the earlier
jurisdiction/disposition hearing, held on June 1, 2012, the juvenile court
indicated that its ruling as to the maternal grandmother was not final: “So I have carefully considered this, because
I do think . . . the law contemplates that children are better off in the home
of a relative. The concerns noted in the
original jurisdictional report . . . in terms of the psychosocial background
have not been answered by simply hearing the kinship [sic] has approved the home.
this. The grandmother is certainly free
to get an adoption home study, but at
this time the child needs to be placed in the home that is able and willing
to proceed with adoption.†(Italics
added.) On July 20, 2012, the court
heard from the maternal grandmother on the concerns that had been raised
against placement with her, then definitively ruled against that
placement. On our reading of the record,
it is the later ruling that settled the question.
Mother’s
pro se notice of appeal from the August 17, 2012, order terminating parental
rights purported to challenge orders going back to April 6, 2012. Construing the notice of appeal liberally in
favor of its sufficiency (cf. Cal. Rules of Court, rule 8.100(a)(2)), we conclude
the notice properly encompassed the
order denying placement with the maternal grandmother. Mother’s notice of appeal was filed September
5, 2012, within 60 days of the date the order was made. (Cal. Rules of Court, rule 8.104(a).)
With
respect to mother’s standing to raise the placement issue, we conclude that she
has standing to challenge the order denying placement to the maternal
grandmother because a different order could have affected her ability to
contest the termination of parental rights.
“Not every
party has standing to appeal every appealable order. Although standing to appeal is construed
liberally, and doubts are resolved in its favor, only a person aggrieved by a
decision may appeal. [Citations.] An aggrieved person, for this purpose, is one
whose rights or interests are injuriously affected by the decision in an
immediate and substantial way, and not as a nominal or remote consequence of
the decision. [Citations.] These rules apply with full force to appeals
from dependency proceedings.
[Citation.]†(
“A parent’s
appeal from a judgment terminating parental rights confers standing to appeal
an order concerning the dependent child’s placement only if the placement
order’s reversal advances the parent’s argument against terminating parental
rights.†(K.C., supra, 52 Cal.4th
at p. 238.)
In
Cal.App.4th 1042 and In re H.G.
(2006) 146 Cal.App.4th 1 (cited with approval in K.C., supra, 52 Cal.4th
at pp. 237-238), the reviewing courts held that parents had standing to appeal
from orders concerning relative placement because those orders could affect the
ultimate question whether the parents’ rights would be terminated. In H.G.,
a section 387 order removing the minor from the grandparents’ care “ha[d] the
potential to alter the court’s determination of the child’s best interests and
the appropriate permanency plan for that child, and thus [might] affect [the]
parent[s’] interest in [their] legal status with respect to the child.†(146 Cal.App.4th at p. 10.) In
Esperanza C., the court applied this reasoning to the denial of a section
388 petition seeking placement with the maternal great-uncle and his wife. (165 Cal.App.4th at pp. 1050-1051,
1053-1054.) Both courts cited the
“relative caregiver†exception to adoption (§ 366.26, subd. (c)(1)(A)), which
provides that if a child is living with a relative who can serve as a legal
guardian but is unwilling or unable to adopt, and removal from the relative
would be detrimental to the child’s well-being, the juvenile court should not
terminate parental rights (Esperanza C.,
supra, 165 Cal.App.4th at
p. 1054; H.G.,
366.26, former subd. (c)(1)(D)]).
The
maternal grandmother stated she would be willing to adopt the minor or to serve
as legal guardian. But it was never
determined that she would be able to adopt since she had not passed an adoption
home study and her state of health remained uncertain. Thus, had the minor been placed with her, the
relative caregiver exception to adoption might have applied, giving mother an
argument against the termination of her parental rights, which absent such
placement she did not have. Mother was
therefore aggrieved by the order denying placement and has standing to
challenge it. (K.C., supra, 52 Cal.4th
at p. 238.)
Finally, we
reject respondent’s forfeiture claim.
This contention rests only on the fact that mother did not raise the
relative caregiver exception to adoption at the section 366.26
hearing. But since the minor had not
been placed with the maternal grandmother, mother could not have raised that
exception to adoption.
For all the
above reasons, mother’s challenge to the order denying placement with the
maternal grandmother is properly before us.
Substantive arguments
On the merits, however, we agree
with respondent that mother has failed to show error.
As the parties correctly state,
the standard of review for placement
orders is abuse of discretion. (
318 (Stephanie M.).) We may overturn the juvenile court’s
determination only if it was arbitrary, capricious, or patently absurd. (Ibid.) So far as the court drew reasonable
inferences from the facts before it, we cannot put aside its decision and
substitute our own. (
If a minor
is removed from his or her parents’ custody, “preferential consideration shall
be given to a request by a relative of the child for placement of the child with
the relative.†(§ 361.3, subd.
(a).) “Preferential consideration†means
that “the relative seeking placement shall be the first placement to be
considered and investigated.â€
(§ 361.3, subd. (c)(1).)
But the
statute does not mandate such placement.
Rather, it sets out a long but nonexclusive list of factors that the
juvenile court must consider “[i]n determining whether placement with a
relative is appropriate[.]†(§ 361.3,
subd. (a)(1)-(8).) These include, among
others, “[t]he best interest of the child†(§ 361.3, subd. (a)(1)); “[t]he good
moral character of the relative . . . , including whether any individual
residing in the home has a prior history of violent criminal acts or has been
responsible for acts of child abuse or neglect†(§ 361.3, subd. (a)(5)); and
“[t]he ability of the relative to do the following: [¶]
(A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and
effective care and control of the child.
[¶] . . . [¶] (D) Protect the child from his or her parents.†(§ 361.3, subd. (a)(7).)
Here, the
juvenile court appropriately considered and investigated placement with the
maternal grandmother prior to disposition.
However, at the jurisdiction/disposition hearing the court made
tentative findings adverse to the placement, based on all of the statutory
criteria we have quoted. The court found
that the placement would not serve the best interest of the child (§ 361.3,
subd. (a)(1)) because (1) having been concealed from the court for over a year
by parents who would not be granted services, the child needed permanence and
stability as soon as possible, and (2) the grandmother’s apparent connivance in
the parents’ concealment raised doubts as to whether that need would be well
served by placement with her (§ 361.3, subd. (a)(7) (A), (B) & (D)); the
unresolved question whether the grandmother had mistreated the minor’s half
sibling or allowed others to do so (§ 361.3, subd. (a)(5)); and the uncertainty
about the grandmother’s health (§ 361.3, subd. (a)(7)(A), (B)). All of these concerns were supported by
evidence in the record. Nevertheless,
the court urged the Department to continue investigating the placement and recommended
that the grandmother obtain an adoption home study. Thus, the court had not ruled out the
possibility that the grandmother could resolve the court’s concerns in her
favor.
At the
subsequent placement hearing, however, the Department recommended a placement plan more likely to lead to early
adoption. The grandmother had not
obtained an adoption home study or presented any further evidence to support
placement with her. The court reasonably
found her oral responses to the allegations against her insufficient to allay
the court’s doubts about the wisdom of placing the minor in her home. Indeed, so far as she disputed the
investigative social worker’s claim that the social worker had attempted to
execute the protective custody warrant for the minor at the grandmother’s home,
her assertions raised further doubts about her credibility and her ability or
willingness to protect the minor from the parents. Thus, the court had, if anything, less reason
than before to accept at face value the grandmother’s claims of robust health
and her denial that she had mistreated the minor’s half sibling.
Given these
facts and the reasonable inferences the court drew from them, the court’s
denial of placement with the maternal grandmother was not arbitrary,
capricious, or patently absurd. (
The fact that the evidence could be viewed more favorably to the
proposed placement does not justify overturning the court’s order. (Id.
at p. 319.)
IV
Father, joined by mother,
contends the matter must be remanded due to a failure of compliance with
ICWA. We agree.
When the
juvenile court knows or has reason to know that a child involved in a
dependency proceeding is an Indian child, ICWA requires that notice of the
proceedings be given to any federally recognized Indian tribe of which the
child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a);
147 Cal.App.4th 982, 989.) There is
“an affirmative and continuing duty to inquire†whether a child is or may be an
Indian child. (Welf. & Inst. Code, §
224.3, subd. (a).) Notice requirements
are construed strictly. (
Where notice has been given, any error in notice is subject to harmless
error review. (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 (
Notice must
include all of the following information, if known: the child’s name, birthplace, and birth date;
the name of the tribe in which the child is enrolled or may be eligible for
enrollment; names and addresses (including former addresses) of the child’s
parents, grandparents, great-grandparents, and other identifying information;
and a copy of the dependency petition.
(25 C.F.R. § 23.11(d) (1)-(4); Welf. & Inst. Code, § 224.2, subd.
(a)(5)(A)-(D); In re D.W. (2011) 193
Cal.App.4th 413, 417.)
Because
ICWA’s primary purpose is to protect and preserve Indian tribes, a parent does
not forfeit a claim of ICWA notice violation by failing to raise it in the
juvenile court. (In re J.T. (2007) 154 Cal.App.4th 986, 991 (J.T.); Nicole K.,
fn. 1; In re Marinna J. (2001) 90
Cal.App.4th 731, 738-739 (Marinna J.).)
The tribes
never learned anything about father’s ancestry other than the name, address,
and birth date of the paternal grandmother.
Given this meager information, their negative responses to the ICWA
inquiry are unsurprising. But there is
reason to think more information might have been available if it had been
diligently pursued.
The
jurisdiction/disposition report shows that the social worker spoke to father by
telephone and in person. He gave her the
names of the paternal great-grandmother (now deceased); of his brother and
sister, with whom he remained in contact; and of his second cousin, a possible
candidate for placement. The report also
shows that the social worker spoke by telephone to the paternal grandmother.
It appears
from the report that father and the paternal grandmother were forthcoming in
response to the social worker’s inquiries.
It does not appear, however, that the social worker asked either of them
about father’s alleged Indian heritage, even though the report mentions that
claim. There is no evidence that the
social worker attempted to contact the other relatives whose names father had
given her. Finally, it does not appear
that the social worker contacted the ICWA paralegal to give him the information
that she had obtained about father’s family.
(Even the name of the paternal great-grandmother, which is required
information for ICWA notice if known, was never given to the tribes.) Given the living relatives that might
reasonably have been expected to have information relevant to father’s claim of
Indian ancestry, the social worker’s apparent failure to inquire further of
father or the paternal grandmother, to contact father’s siblings and second
cousin, or to provide those relatives’ names and contact information to the
ICWA paralegal amounts to a failure to carry out the “affirmative and
continuing duty to inquire†imposed by ICWA.
(§ 224.3, subd. (a).)
It is true, as respondent asserts, that father
was not cooperative with the juvenile court or the ICWA paralegal, and that his
counsel told the court the information on the ICWA notice form was
correct. But because ICWA is intended to
protect the interests of the tribes, not those of the parents, neither father’s
misfeasance nor his counsel’s statement can defeat father’s claim of ICWA
notice violation or estop him from raising it on appeal. (J.T.,
supra, 154 Cal.App.4th at p. 991;
Cal.App.4th at pp. 738-739.)
Respondent
speculates at length that the social worker tried to obtain the required
information, but the persons she spoke to simply did not have it. But such speculation is insufficient to
establish that the Department fulfilled its duty of inquiry. Based on the jurisdiction/disposition report,
which is supposed to contain all information relevant to the juvenile court’s
decision-making process, there is no evidence that the social worker asked the
persons she spoke to any questions about the family’s alleged Indian ancestry,
or that she made any attempt to contact the other living family members whose
names she was given.
In light of
the Department’s failure to perform its duty of ICWA inquiry, we cannot uphold
the juvenile court’s finding that ICWA did not apply. Therefore, we must vacate the court’s orders
terminating parental rights and ordering a permanent plan of adoption, and
remand the matter for further ICWA proceedings.
DISPOSITION
In case No. C071919, the matter
is remanded to the juvenile court with directions to vacate its orders
terminating parental rights and ordering a permanent plan of adoption, and to
renotice the tribes with any further information the Department may obtain through
a properly diligent inquiry. If the
court finds, after the new notice has been given, that ICWA has been complied
with and does not apply, the court shall reinstate its orders terminating
parental rights and ordering a permanent plan of adoption. If the court finds that ICWA applies, it
shall proceed in accordance with ICWA.
In case No.
C072166, father’s appeal is dismissed.
RAYE , P. J.
We concur:
HULL , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated section references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] According to the Sacramento County Sheriff’s
Department, mother claimed D.J. punched her in the head because he was trying
to jump out of the car and run away; she had an eye injury consistent with this
allegation. The officer concluded mother
did not cause D.J.’s injury.
