In re Michel C.

Filed 9/29/06 In re Michel C. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. Parrish, Judge.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Allen, Proietti & Fagalde, LLP, and Michael P. Fagalde, for Plaintiff and Respondent.

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Roger C. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his three children.^[1] He challenges a previous order terminating reunification services for him as well as contends the court failed to comply with noticing requirements under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) On review, we will reverse and remand to the superior court for ICWA notice compliance.

PROCEDURAL AND FACTUAL HISTORY

In June 2004, the Mariposa County Department of Human Services (department) removed appellant’s then four-year-old and three-year-old sons as well as his 11-month-old daughter from what would later be described as one of the worst “dirty house” cases on record in the county. Sheriff’s deputies arrested appellant and the children’s mother on child endangerment and drug-related charges. The local public health authority declared the home uninhabitable.

The department consequently filed a dependency petition on the children’s behalf and the Mariposa County Superior Court ordered them detained. At a jurisdictional hearing, both parents submitted to the court’s jurisdiction under section 300, subdivision (b). On August 30, 2004, the court adjudged the children dependents, removed them from parental custody and ordered reunification services for each parent.

Over the next six-plus months, appellant made little effort to reunify with his children. Among apparently other problems, appellant was in and out of custody for positive drug tests in violation of a probationary grant. His participation in services was sporadic and he missed 11 scheduled visits with his children. Statements attributed to appellant throughout this period disclose that he did not believe he bore any responsibility for the children’s removal. Rather, he blamed the children, their mother and even his own mother as well as the department. A psychological evaluation diagnosed appellant with an antisocial personality disorder as well as methamphetamine addiction, which combined to render him unable to care for the children. The psychologist could not even recommend any services to restore appellant’s ability to parent and provide care. Meanwhile, appellant’s two sons were exhibiting signs of severe emotional damage. Although the court originally set a six-month review hearing for early February 2005, appellant twice successfully moved to continue the hearing. In both instances, his trial counsel requested additional time until after appellant’s “sentencing.” Appellant had been recently convicted of two felony charges: threatening a witness (Pen. Code, § 140(a)) and criminal threats (Pen. Code, § 422).

The court elected to proceed with its six-month review on March 14, 2005, even though appellant was still awaiting sentencing. Appellant would later be sentenced to a two-year prison term for the threatening-witness charge which was doubled pursuant to the “Three Strikes” law.^[2]

Following the court’s six-month review, it found that, despite the provision of reasonable services, appellant failed to participate regularly in court-ordered services and made minimal progress towards alleviating or mitigating the causes necessitating the children’s out-of-home placement. It consequently terminated services for appellant. It did continue services, however, for the children’s mother based on her recent efforts. The court also advised:

“. . . if [the parties] wish to preserve the right to any review on appeal and the findings and orders made at this hearing, they are required to seek an extraordinary writ by filing a Notice of Intent to File a Writ petition and Request for Record, which is form JV-820 and writ of petition, juvenile JV-825, or other petition or extraordinary writ must be served within seven days of this hearing. Those forms are available in the courtroom.”

A week later, appellant’s trial counsel filed on his behalf a notice of intent to file a writ petition (notice of intent) pursuant to then California Rules of Court, rule 39.1B. Three days later, the attorney filed notice that appellant was withdrawing the notice of intent.

In the end of March 2005, the court conducted a special hearing on visitation. The department sought to discontinue all visits between the parents and the children on grounds the visits were detrimental. It relied on a lengthy behavioral health assessment of appellant’s two sons as well as the status of the dependency case. Through his trial counsel, appellant argued he had not visited with his children since January and thus he could not be an influence on their acting-out problems. The court found visitation with appellant was detrimental to the children and accordingly found a need to suspend visitation.

At a 12-month review in September 2005, the court terminated services for the mother and set a section 366.26 hearing. In the process, the court also found that the ICWA did not apply to the children.^[3] It further ordered that appellant was to have no in-person visits with the children while he remained incarcerated.

With the court’s consent, counsel for the mother gave her the following on-the-record advisement.

“[Mother’s Counsel]: Miss Clark, you have the right to file a Writ that must be -- the Notice must be provided within 7 days. Once the Court has received it, a transcript has been provided, you will have 10 days then to file your Writ.

“Do you understand that?

“[Mother]: Yes.

“[Mother’s Counsel]: Thank you.

“THE COURT: The forms have been provided.

“[Mother’s Counsel]: Here we go.

“[County Counsel]: Your Honor, that same advisement will also apply to the father.

“THE COURT: Yes.”

Although the mother thereafter sought writ review of the court’s decision, appellant did not. This court denied the mother’s writ petition which challenged the trial court’s reasonable services finding. (Karen C. v. Superior Court, F048917, opn. filed 11/30/05.)

In February 2006, the court found the children adoptable and terminated parental rights.

DISCUSSION

I. Reviewability

As previously mentioned, appellant challenges the court’s March 14, 2005, decision terminating his services and contends the court failed to comply with ICWA noticing requirements. Ordinarily, neither of these claims would be reviewable on appeal from the order terminating parental rights. This is because a challenge to the most recent order entered in a dependency matter may not challenge prior orders, including those related to ICWA, for which the statutory time for filing an appeal has passed. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-812; In re Pedro N. ((1995) 35 Cal.App.4th 183, 185.)

Nevertheless, appellant claims he may now challenge the order terminating his services. First, he contends the court gave him an incorrect advisement at the six-month review hearing and an inadequate advisement at the 12-month review. Second, appellant argues his trial counsel was ineffective for failing to object to the termination of his reunification services at the six-month phase. Third, with regard to his ICWA noticing argument, appellant urges an ICWA claim is not subject to waiver. (In re Marianna J. (2001) 90 Cal.App.4th 731.) Upon review of the record and as discussed below, we agree the advisements were insufficient.

At the six-month review stage when the court terminated services for appellant but continued them for the mother, the court incorrectly advised appellant that in order to preserve his right to review, he must seek an extraordinary writ from the appellate court. Such an advisement is required when the court sets a section 366.26 hearing (§ 366.26, subd. (l)(3)(A)); however, the court did not set a section 366.26 hearing as part of its order at the six-month review. Instead, appellant had a right to appeal the court’s ruling as a post-judgment order. (§ 395; Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 811.) We note in this record the court at the previous dispositional hearing never advised appellant that he even had a right of appeal. (Cal. Rules of Court, rule 1435(d)-(e); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150 [the dispositional order constitutes the judgment and creates the first opportunity to appeal in a dependency].)

We recognize that, notwithstanding the incorrect notice, appellant’s trial counsel filed a notice of intent to seek an extraordinary writ only to withdraw it a few days later without explanation. What to make of this scenario is impossible to resolve without speculating on this record. Had appellant instructed counsel first to challenge the order terminating his services and later to withdraw the matter perhaps in light of his pending sentencing hearing? Had counsel followed the court’s direction only to realize afterwards that a writ petition was not the way to proceed and then dropped the matter? We cannot say. Erring on the side of caution, we will infer that the court’s incorrect advisement influenced appellant’s failure to challenge the order terminating services in a timely fashion.

As for the 12-month review stage when the court made its finding that ICWA did not apply to the children, it also set the section 366.26 hearing. Had it given parents the advisement it gave at the six-month review, there would be no cause for concern. However, the advisement by the mother’s attorney was inadequate.

According to California Rules of Court, rule 1436.5 (d), when a court sets a section 366.26 hearing, the court must “advise orally all parties present . . . that if the party wishes to preserve any right to review on appeal of the [setting order], the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record form . . . .” Counsel did not communicate this imperative when she said “you have the right to file a Writ.” Also, directing the notice only to mother was inappropriate. (Cal. Rules of Court, rule 1435.5 (d).) While county counsel was correct to point out the same advisement would apply to appellant, the advisement remained inadequate.

We therefore conclude each of appellant’s claims of error is cognizable on this appeal. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722-726.)

II. Order Terminating Services at Six-Month Stage

According to appellant, the court erred as a matter of law when it terminated reunification services for him at the six-month stage. Based on his interpretation of section 366.21, subdivision (e), appellant argues the court could not terminate his services at the six-month stage because it continued the mother’s services and did not set a section 366.26 hearing.^[4] We need not resolve appellant’s claim of error, an issue which he admits is a question of first impression because, as discussed below, appellant cannot show any prejudice. (Cal. Const., art. VI, § 13.)

At the heart of appellant’s argument is his claim that he was entitled to 12 months of services. However, even with additional services, whether it would have been for a total of 12 months or the maximum of 18 months from the time the children were detained (§ 361.5, subd. (a)), appellant disingenuously ignores the obvious. Even assuming appellant changed his ways and actively pursued services, the court could not have reunified him and the children within any of these time frames. Having been sentenced to state prison for a four-year prison term, 85 per cent of which he would have to serve under the “Three Strikes” law, appellant would not be available to reunify with the children within the time frames set forth in the statutory scheme.^[5]

To make a case for prejudicial error, appellant instead tries to tie-in the order terminating reunification services with the decision to suspend visitation. He claims the court based its determination that visits were detrimental to the children in part upon its earlier order terminating his services. From there appellant argues had he continued to receive visits, he might have been able to build his relationship with the children such that he would have been able to defeat termination as detrimental to them. (§ 366.26, subdivision (c)(1)(A).) Therefore, in his view, the alleged premature termination of services prejudiced him. We disagree.

First, the record does not support appellant’s attempt to tie together the two decisions. The court never explained the basis for its decision to suspend visitation. Although the department did cite the order terminating the father’s services as it argued for an order ending visitation, the department’s advocacy tells us nothing about the court’s decision-making process, particularly considering the department also urged the court to stop visits between the children and their mother who was still receiving services. Second, appellant’s argument overlooks the serious emotional problems his children suffered, a large portion of which were apparently attributable to his brutish behavior. The behavioral health evaluations of the children, which the department submitted to the court, easily provided substantial evidence to support a finding that visitation was detrimental. Indeed, having said that, we note appellant does not claim the court’s decision to suspend visitation lacked sufficient evidence.

Having concluded appellant cannot show any prejudice resulting from the court’s decision to terminate his services, we will not further consider his claim of error.

III. ICWA

At the outset of these dependency proceedings, appellant reported that three of his grandparents had Indian heritage; his maternal grandmother was a Blackfeet Indian, his maternal grandfather was Cherokee, and his paternal grandmother was Choctaw. Consequently, the department would send notices to seven federally-recognized tribes and the Bureau of Indian Affairs (BIA) in an effort to comply with ICWA notice requirements. Over time, four tribes responded that the children were neither tribal members nor eligible for membership and the department filed copies of those responses with the court. A fifth tribe, the Blackfeet Tribal Council, requested additional heritage information. The department in turn mailed copies of a new form including the requested information to the Blackfeet Tribal Council as well as the remaining two tribes which had yet to respond in any way, the Choctaw Nation of Oklahoma and the Cherokee Nation of Oklahoma. Although the department later claimed each of these remaining tribes responded as had the other tribes, i.e., that the children were neither tribal members nor eligible for membership, the department did not provide the court proof of the tribes’ receipt of notice nor copies of their alleged responses. As previously mentioned at the 12-month-review hearing, the court found ICWA did not apply to the proceedings.

Appellant complains that the court failed to comply with ICWA noticing requirements in at least three respects. He questions the sufficiency of the first notice to the tribes because it only contained the names, birthplaces, and birthdates for the parents and the children and not similar information regarding appellant’s ancestors. He also complains the court should have waited 60 days after the department sent the second notice before conducting its dispositional hearing; the hearing occurred 33 days after the department sent that notice. Next, he argues the department should have mailed the second notice with the additional ancestry information to the four tribes which had already responded that the children were not members or eligible for membership in their tribes. Finally, he contends the department failed to file the responses it allegedly received from the Blackfeet Tribal Council, the Choctaw Nation of Oklahoma and the Cherokee Nation of Oklahoma, or, for that matter, proof of their receipt of the second notice to establish compliance.^[6]

In the case of the four tribes which did respond to the department’s initial notice and whose responses were filed with the court, we conclude there was no error. First, the trial court satisfied ICWA (25 U.S.C. § 1913) by waiting at least 10 days before conducting its dispositional hearing. Appellant’s reliance upon a 60-day rule is misplaced. California Rule of Court, rule 1439(f)(6) states a court must wait at least 60 days following the sending of notice to determine that ICWA does not apply based on the lack of a “determinative response to the notice.” Here, the court waited more than a year before making its determination. Second, had the four tribes which responded needed additional information to conduct their records search, they could have so advised the department as did the Blackfeet Tribal Council. They did not.

This leaves the question of notice as to the remaining three tribes. We find no error as to the Choctaw Nation because the record includes the tribe’s signed return receipt for the first notice. We know from the record that the Blackfeet Tribal Council received the first notice given its response requesting more information. There is no record proof, however, that the Cherokee Nation of Oklahoma received the first notice. Further, there is no record proof that either of these two tribes (the Blackfeet or the Cherokee Nation) received the second notice. The record contains neither signed return receipts from these tribes nor their purported responses.

As this court held in In re H.A. (2002) 103 Cal.App.4th 1206, 1214-1215, and as a rule of court now states (Cal. Rules of Court, rule 1439(f)), the department must document its ICWA compliance with the trial court by filing, in particular, the return receipts and any responses received. It is the trial court’s duty to receive evidence of the notice efforts by the department. (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) The court cannot rely on mere representations that proper notice was given. (In re Asia L. (2003) 107 Cal.App.4th 498, 506-509.) Absent such documentation, the department faces “the strong likelihood of reversal on appeal to this court.” (In re H.A., supra, 103 Cal.App.4th at p. 1215.)

Remarkably, the department responds that any error was harmless because there was substantial compliance with the noticing provisions. Such a response does this court no good. In In re Christopher I. (2003) 106 Cal.App.4th 533, the harmless-error case cited by respondent, there was the necessary documentary proof to establish substantial compliance. Here, the department submitted no such proof as to the Blackfeet Tribal Council or the Cherokee Nation of Oklahoma. Accordingly, we will reverse the order terminating parental rights subject to a limited remand solely for ICWA purposes, as described in our disposition.

DISPOSITION

The order terminating parental rights is reversed under the following conditions. The matter is remanded to the trial court for the limited purpose of assuring that the department gives notice of the underlying proceedings and any upcoming hearing in compliance with ICWA to the Blackfeet Tribal Council and the Cherokee Nation of Oklahoma. (25 U.S.C. § 1913.) Respondent must document its efforts to provide such notice by filing with the trial court copies of the notice sent, proof of service, return receipts and any responses it received. (See In re H.A., supra, 103 Cal.App.4th at pp. 1214-1215; Cal. Rules of Court, rule 1439(f).) If either of these two tribes responds by confirming that the child is or may be eligible for membership within 60 days of sending proper notice under the ICWA to the BIA and any identified tribes (Cal. Rules of Court, rule 1439(f)(6)), the court shall proceed pursuant to the terms of the ICWA and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no such confirmation, the court shall then reinstate the order terminating parental rights.

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^*Before Harris, Acting P.J., Levy, J., and Cornell, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] We hereby take judicial notice of our affirmance of the judgment and remittitur in the father’s criminal appeal. (People v. Clark, F047948; Evid. Code, §§ 452 & 459.)

^[3] The record relevant to this determination is summarized in connection with our Discussion, III, of appellant’s claim of ICWA notice error herein.

^[4] Section 366.21, subdivision (e) provides in relevant part:

“[At a six-month review] [i]f the child was under the age of three years on the date of the initial removal, or is a member of a sibling group described in paragraph (3) of subdivision (a) of Section 361.5, and the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 within 120 days. If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal or is a member of a sibling group described in paragraph (3) of subdivision (a) of Section 361.5, may be returned to his or her parent or legal guardian within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing. “For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in paragraph (3) of subdivision (a) of Section 361.5, shall review and consider the social worker's report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interest of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interest of each child to schedule a hearing pursuant to Section 366.26 in 120 days for some or all of the members of the sibling group.

. . .

“In all other cases, the court shall direct that any reunification services previously ordered shall continue to be offered to the parent or legal guardian pursuant to the time periods set forth in subdivision (a) of Section 361.5, provided that the court may modify the terms and conditions of those services.”

^[5] This fact may well explain why trial counsel withdrew the notice of intent and did not file a notice of appeal from the order terminating appellant’s services.

^[6] Appellate counsel’s effort to chart all of the relevant information as an attachment to her brief is commendable.