In re M.L.
Filed 4/26/13 In re M.L. CA4/2
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This opinion has not been certified for publication or ordered published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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In
re M. L., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.
S.,
Defendant and Appellant.
E057367
(Super.Ct.No. J234563)
OPINION
APPEAL from
the Superior Court of
Bernardino County.
Cheryl C. Kersey, Judge. Reversed
with directions.
Clare M.
Lemon, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle,
County Counsel, Jamila Bayati, Deputy County Counsel,
for Plaintiff and Respondent.
INTRODUCTION
E. S.
appeals an order terminating her parental rights to M. L. She contends that her
of notice that at the selection and implementation hearing, pursuant to Welfare
and Institutions Code section 366.26, the San Bernardino County Children and
Family Services department (CFS) would recommend adoption as the child’s permanent
plan.
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She also contends that the order must be reversed for failure to comply
with the Indian Child Welfare Act
(ICWA). (25 U.S.C. § 1901 et seq.)
FACTUAL AND PROCEDURAL
HISTORY
When M. L.
was 21 months old, E. S. and her boyfriend (who is not M. L.’s father) were
arrested on charges involving possession of heroin. Mother admitted to the arresting officer that
she was under the influence of heroin when she was arrested. M. L. was detained and placed with his
maternal grandmother, L. S. M. L.’s
father, who had an extensive criminal record and an extensive history of drug
abuse, was in prison at the time of M. L.’s detention.
A petition
pursuant to section 300 was filed on August 27, 2010.
It alleged that E. S. had a drug problem which impeded her ability
to care for M. L. and that she had failed to protect the child by allowing him
to be in a home where there was drug paraphernalia, including “exposed syringe
needles with Heroin still in the vials, thus placing the child at extreme risk
for serious harm and possible death from drug overdose.†It also alleged that E. S. had left M. L.
with no provision for support upon her arrest.
The
jurisdiction report states that E. S. admitted having a problem with heroin
use. She reported that she and her
boyfriend, as well as all of their friends, used heroin. In addition, E. S. is bipolar and uses
prescribed lithium. At the time of the
report, she was also suffering from depression and was using prescribed Xanax. The biological father had “an extremely long
history of drugs, alcohol, violence, criminality, and incarceration.†He had no relationship with M. L. E. S. recognized that she needed help with
her addiction and recognized that rehabilitation was the only way she would get
her son back and be able provide for him.
M. L. was
healthy and appeared to be developmentally on target. His maternal grandmother, L. S., reported
that he was a very happy child and got along well with everyone. The social worker observed that the child and
the grandmother were strongly bonded and that the child was doing very well in
that placement. She reported that the
grandmother was willing to give him a permanent home if reunification failed,
but that she hoped E. S. could “turn this around and get clean and sober.†E. S. was still incarcerated but was given
referrals to appropriate services, and CFS would authorize visits upon her
release.
E. S.
reported possible Native American ancestry, and CFS initiated notice pursuant
to ICWA. The court found that notice had
been given as required, and that ICWA does not apply.
An addendum
report filed before the jurisdiction/disposition hearing stated that E. S.
had been released from jail and was attending drug court. She was living with an aunt, and was
complying with all aspects of her program.
She reported having good visits with M. L., although not as frequently
as she would like because she was extremely busy with her drug classes. M. L. continued to do “extremely well†in his
grandmother’s care. The social worker
had spoken with M. L.’s father. He
attributed his alcohol problem to the fact that he had not been able to see his
son. However, as the social worker
noted, he had had issues with drinking for over a decade. The father had been released from prison on September
17, 2010, but
had been rearrested for a parole violation and returned to custody on September
30, 2010. The social worker recommended against
reunification services for the father.
A second
addendum report stated that the social worker had been informed that E. S.
might have been injecting cocaine. She
had completed paperwork to require E. S. to engage in random drug testing. E. S. had not yet begun individual counseling
as required. The social worker reported
that although E. S. was struggling, she continued to make progress in her
program, and was “putting forth effort.â€
The father remained incarcerated.
He had seen M. L. only once or twice since M. L.’s birth. The social worker stated that it would not
benefit M. L. to reunify “with a stranger who presents more risk to the safety
and well being of the child.â€
At the
jurisdiction/disposition hearing, the court declared M. L. a dependent and
ordered family reunification services
for E. S. The father was found to be an
alleged father and not entitled to services.
M. L. was continued in placement with his maternal grandmother. E. S. was ordered to be in compliance with
medication for her bipolar condition and to follow up with her psychiatrist on
a regular basis.
The
six-month status review report stated that M. L. continued to do well in his
placement and that the grandmother and her husband were considering adopting
him if E. S. was not able to reunify.
E. S. was continuing to work on
her case plan, but the social worker expressed a number of concerns. First, E. S. had been arrested twice for
failure to drug test (although E. S. reported that she had been unable to
urinate because of a medical condition).
Second, E. S. was living with her boyfriend and his family. The boyfriend had a serious drug history, and
there was information that he was abusing an opiate and that the boyfriend’s
father was selling marijuana. Third, E.
S.’s therapist was concerned that she might relapse. She had a substantial eating disorder and
very poor body image, and appeared unable “to not have a male in her life to
take care of her.†The social worker
considered E. S.’s relationship with the boyfriend as “unhealthy and borderline
abusive.†Nevertheless, E. S.’s
prognosis was considered “‘guardedly good,’†and CFS recommended continuation
of reunification services. It noted that
E. S. needed to obtain a suitable residence for herself and M. L. and to obtain
steady employment.
At the
six-month review, the court continued reunification services to E. S., finding
her progress to have been moderate.
In the
12-month review report, CFS recommended termination of services and
establishing a permanent plan of guardianship for M. L. The social worker reported that E. S. had
been compliant and cooperative and that she was currently completing
services. However, E. S. had told the
social worker that she was not ready to take on the responsibility of caring
for M. L. She was still in need of
appropriate housing and stable employment, and needed further treatment for her
self-image, eating disorder and domestic violence issues. She had discussed guardianship with her
mother, L. S., and wanted her mother to obtain legal guardianship of M. L. L. S. reported that she and her husband
agreed to obtaining legal guardianship if reunification did not succeed. The social worker stated that because of the
bond between mother and son, termination of parental rights would not be in M.
L.’s best interest.
At the
12-month review hearing, the court terminated reunification services and set a
section 366.26 hearing with the understanding that CFS would limit its
permanent plan recommendation to guardianship.
M. L.’s attorney agreed to guardianship because she wanted him to stay
with his grandmother, to whom he was “very bonded.†The grandmother was not willing to adopt him
at that point.
On the date
set for the section 366.26 hearing, CFS informed the court that it had changed
its permanent plan recommendation from guardianship to adoption. The court continued the hearing in order to
provide notice of the changed recommendation.
Mother did
not appear on the date set for the continued hearing. The court continued the hearing at the
request of counsel for the alleged father.
On the next
date set for the section 366.26 hearing, E. S. again did not appear.
The court terminated parental rights and referred M. L. for adoption.
LEGAL ANALYSIS
1.
BECAUSE THERE IS SUBSTANTIAL
EVIDENCE THAT E. S. HAD ACTUAL NOTICE OF THE SECTION 366.26 HEARING, THERE WAS
NO VIOLATION OF HER DUE PROCESS RIGHT TO NOTICE
Summary of the Issue
E. S.
contends that she did not receive adequate notice of the continued section
366.26 hearing after CFS informed the court that it would proceed on a
recommendation of adoption rather than guardianship.
The issue
arose as follows: At the 12-month review
hearing on December 5, 2011, the court terminated reunification
services and set a permanency planning hearing pursuant to section 366.26. The parties and the court concurred that the
hearing would be limited to a recommendation for guardianship and that
termination of parental rights was not on the table, so to speak. E. S. was present at that hearing. However, the court ordered CFS to “notice
parents appropriately†for the section 366.26 hearing, which the court set for April
3, 2012.
E. S. did
not attend the hearing on April 3. At
that hearing, CFS informed the court that its recommendation of guardianship at
the 12-month review hearing was based on the grandmother’s unwillingness to
adopt at that time. The grandmother, L.
S., had changed her mind, however, and CFS intended to proceed instead on a
permanent plan of termination of parental rights and adoption. CFS considered adoption by L. S. to be in M.
L.’s best interest and “the more appropriate plan,†given his age and the
greater permanency of adoption. CFS
wanted to continue the hearing in order to provide statutorily required notice
of the change in recommendation. E. S.’s
attorney objected on her behalf to termination.
The court
set the continued section 366.26 hearing for August 1, 2012, and ordered CFS to
give appropriate notice of the hearing date and the change in the
recommendation from guardianship to adoption.
The court set a notice review hearing for May 18, 2012.
On May 18,
2012, CFS informed the court that E. S. had been served by substituted service,
as shown on the proof of service filed on April 26, 2012. The proof of service stated that service was
accomplished by delivering a copy of the notice to the maternal grandmother at
her residence in Crestline and by mailing a copy to E. S. at that address. The declaration of due diligence stated that
L. S. had informed the server that E. S. lived at that address but was not
there at the time. Another proof of
service, filed on April 23, 2012, stated that E. S. had been served by
certified mail sent on April 16, 2012, to Post Office Box 1396 in Crestline. The certified mail receipt was signed by L.
S.
E. S. did
not appear at the hearing on August 1, 2012.
Her attorney stated that L. S. had told her that E. S. did receive
notice of the hearing. The court asked
L. S. if she thought mother was going to show up. The grandmother replied, “I don’t know she
knows [sic]. She was served physically and also by
mail.†The court then continued the
hearing to September 19, 2012, in order to allow the father’s attorney to
arrange to have him transported.
E. S. did
not appear at the hearing on September 19. CFS stated that she had been served by
substituted service as shown on the proof of service filed April 26, 2012, and
E. S.’s attorney stated that she had sent notice to E. S.’s last known address,
stating that there would be a hearing on termination of parental rights on
September 19, 2012. The hearing
proceeded in E. S.’s absence, and the court terminated parental rights and
referred M. L. for adoptive placement.
E. S. now
contends that she did not receive notice of any of the proceedings after April
3, 2012. She contends that the lack of
any notice of a hearing at which her parental rights might be terminated
violated her due process right to
notice. CFS acknowledges that there is
no indication in the record that E. S. was living at her mother’s home, and
also acknowledges that the mailing address on record for E. S. was Post Office
Box 1559 in Crestline, not Post Office Box 1396.
B.
Notice Requirements Were Satisfied.
Parents
have a due process right to reasonable notice of hearings at which their
parental rights may be affected. (
468.) In addition, California mandates
the means by which notice must be effected for a section 366.26 hearing. Section 294 provides that once the juvenile
court has made a finding that notice of a section 366.26 hearing has been
properly given, notice of any continuance of the hearing may be made by oral
advisement followed by first-class mail to the parent’s usual place of residence
or business, “or by any other means that the court determines is reasonably
calculated, under any circumstance, to provide notice of the continued
hearing.†(§ 294, subd. (d).)
If the
continuance is requested because the recommendation has changed “from the
recommendation contained in the notice previously found to be proper†and the
parent is present at the hearing at which the continuance is ordered, oral
advisement followed by notice by “first-class mail to the parent’s usual place
of residence or business only†is permissible.
(§ 294, subds. (d), (f)(1).) If,
however, the parent is not present at
the hearing at which the continuance is ordered, notice must be given by one of
several specified methods. These include
certified mail, return receipt requested, to the parent’s last known mailing
address; personal service; or delivering the notice to a competent person who
is at least 18 years of age at the parent’s usual place of residence or
business, and thereafter mailing a copy to the parent named in the notice by
first-class mail at the place where the notice was delivered. (§ 294, subds. (d), (f)(2)-(7).)
E. S.
relies on a declaration she filed along with her notice of appeal to establish
the factual basis of her claim that she did not receive notice of the continued
section 366.26 hearing or of the change in the permanent plan
recommendation. There, she stated that
she received no notice of any hearing set after the hearing on April 3, 2012,
and that although she asked her mother about the case, her mother did not
inform her of any hearing date. She also
stated that she did not live at her mother’s residence, and although she was at
the time sharing her mother’s post office box, her mother had the only key.
Although
the declaration is physically contained in the record on appeal, it is not
properly a part of the record because it was not filed in the juvenile court as
part of the proceedings leading to the judgment from which E. S. appeals. An appellate court cannot rely on documents
which were not before the trial court, unless the appellate court can properly
take judicial notice of the
document. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180,
184-185 & fn. 1.) E. S.’s statement
is hearsay and is not subject to judicial notice. Consequently, we must disregard it. Moreover, because appellate courts do not
determine historical facts, except under exceptional circumstances, it is not
within our province to make findings of fact based on evidence which was not
before the trial court. (
405-407, 413-415 [appellate court may not consider postjudgment evidence in
appeal from section 366.26 termination order].)
Accordingly, we are limited to determining whether, on the record which
is actually before us, substantial evidence supports the trial court’s finding
that mother was properly served.
The
portions of the record which we can consider—i.e., everything except E. S.’s
letter—support the juvenile court’s implied finding that E. S. received
effective notice of the hearing and of the subject of the hearing. We agree that the certified mail return
receipt with the grandmother’s signature does not satisfy section 294, even if
E. S. was sharing her mother’s post office box:
Section 294, subdivision (f)(2) provides that notice by certified mail
is sufficient if the agency receives a return receipt signed by the
parent. We also agree that substituted
service was not completed because, even if it was true that E. S. did live at
her mother’s home, the record does not show that the notice was thereafter
mailed to E. S. at the grandmother’s address, as required by section 294,
subdivision (f)(4). (The certified
mailing preceded the purported substituted service.)
In any event, even though neither mode of attempted service
satisfies section 294, due process may still be satisfied if the parent
received actual notice. (
250, 258-259.) E. S.’s attorney told the
court that she had sent notice to mother’s last known address. The court was of course entitled to accept
her representation. In accordance with
the ordinary presumption that a letter correctly addressed and properly mailed
is presumed to have been received in the ordinary course of mail (Evid. Code, §
641), the attorney’s representation constitutes substantial evidence on which
the court could properly rely to conclude that E. S. did receive notice.
Accordingly,
viewed in the light most favorable to the judgment and to all inferences which
the trial court might appropriately have drawn from the evidence (
that E. S. received actual notice of the hearing on the changed permanent plan
recommendation, and that her due process right to adequate notice was
satisfied.
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(See In re Phillip F.,
2.
LIMITED REMAND IS NECESSARY
FOR FULL ICWA COMPLIANCE
E. S.
informed CFS that she might have “Kiowa†ancestry through her mother. She later corrected her statement and
informed CFS that she might have Cahuilla ancestry. CFS sent ICWA notices by certified mail to 10
Cahuilla tribes, and filed nine signed certified mail receipts, along with
written responses from several tribes.
No certified mail receipt or other response from the tenth tribe, the
Santa Rosa Band of Mission Indians, was included. E. S. now contends that this omission requires
reversal of the termination order. We
agree.
ICWA
establishes minimum standards, both procedural and substantive, governing the
removal of Indian children from their families.
(In re H. A. (2002) 103
Cal.App.4th 1206, 1210.) An “Indian
child†for purposes of ICWA means “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);
Welf. & Inst. Code, § 224.1, subd. (a).)
ICWA seeks
to protect the interests of Indian children and promotes the stability and
security of Indian tribes and families.
(In re H. A.,
p. 1210.) To effectuate that
purpose, ICWA requires written notice, containing specified information, to be
sent to any tribe in which the social services agency has reason to know that
the child might be an Indian child. The
notice must be sent by registered or certified mail, with return receipt
requested, and the agency must file either the signed return receipt or a written
response from the tribe in order to prove compliance. (Id.
§ 1912(a); Welf. & Inst. Code, § 224.2, subd. (c).)
We will
remand the cause for the limited purpose of allowing CFS to complete its duties
pursuant to ICWA. If CFS is unable to
produce a signed certified mail receipt from the designated representative of
the Santa Rosa Band of Mission Indians from its original mailing, it must
renotice that tribe, and CFS and the court must proceed accordingly.
(See §§ 224-224.6.)
DISPOSITION
The
order terminating parental rights is reversed and the cause is remanded. On remand, the juvenile court is directed to
conduct a limited hearing to require the department of Children and Family
Services to produce proof that the Santa Rosa Band of Mission Indians received
proper notice under ICWA. Upon proof of
proper notice and a determination by the Santa Rosa Band M. L. is ineligible
for membership in the tribe, or if no response is received from the Santa Rosa
Band within 60 days after the tribe’s receipt of the notice (§ 224.3, subd.
(e)(1), (3)), the court shall then reinstate its orders terminating parental
rights. Alternatively, if the tribe
determines that M. L. is a member or is eligible for membership, the court
shall proceed pursuant to ICWA. (See §
224, subd. (c).)
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
Welfare and Institutions Code unless another code is specified.
been given as required by ICWA.
