In re W.W.
Filed 7/9/12
In re W.W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Calaveras)
----
In re W.W., a
Person Coming Under the Juvenile Court Law.
CALAVERAS COUNTY WORKS AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
D.W. et al.,
Defendants and Appellants.
C069374
(Super. Ct. No. 10JD5070)
Dale W. (father) and
Shannon S. (mother), parents of minor W.W. (minor), appeal from orders of the
parental rights. (Welf. & Inst.
Code,
title="">[1] §§ 366.26, 395.) Both
parents contend the beneficial parental relationship and relative placement exceptions
to adoption applied to minor’s case to defeat termination of their parental
rights. They also challenge the adequacy
of notice pursuant to the Indian Child
Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Mother further asserts that the court erred
in failing to hear her Marsden
motion.
title="">[2]
We agree only with the
parents’ claim of error under the ICWA’s noticing requirements. Our limited agreement, however, requires us
to conditionally reverse for compliance with the ICWA.
BACKGROUND
Preliminary Proceedings
In August 2010,
County Works and Human Services Agency (the Agency) detained minor, born in
September 2007, after law enforcement repeatedly found him filthy and wandering
in the road significant distances from home.
Father blamed a nine-year-old half sibling for not locking the door.
At the detention hearing,
mother claimed Cherokee heritage and father claimed Comanche heritage. The Agency sent notice of the proceedings
only to the Cherokee tribes, erroneously indicating that father claimed
Cherokee heritage. This notice contained
little ancestral information.
By the time of the
jurisdiction hearing, minor was placed with the paternal grandmother. The Agency reported that the parents were not
taking minor’s wandering seriously, and also reported the possibility that the
parents were abusing prescription drugs.
After a contested jurisdiction hearing, the juvenile court
sustained the petition.
The disposition report
recommended services for the parents.
The report stated minor was well bonded to the parents and his half
sibling and had trouble separating from them, but the paternal grandmother was
able to comfort him quickly. The visits
were supervised. At the disposition
hearing, the court adopted the recommendation, ordered services, and set a
review hearing.
Six-Month Review Hearing
The review report revealed
that the Cherokee Nation had contacted the Agency seeking additional ancestor
information. However, the parents had
minimal contact with the Agency, and it had been unable to secure the
requested information. Eventually, the
Agency obtained additional information from mother and sent new notice to the
tribe.
The Agency reported the
parents made minimal progress on the case plan and had been arrested for child
endangerment; mother was also facing drug charges, and the parents were
homeless. Minor remained placed with the
paternal grandmother and was doing well.
The parents had difficulty demonstrating consistent parenting skills in
that they were late or cancelled visits although they were appropriate during
visits. Consequently, after October
2010, visits were decreased to biweekly and supervised at Agency offices rather
than by the paternal grandmother. The
parents missed the first scheduled visit and failed to contact the Agency for
visits until December 2010. The parents
were late for their first visit, but did attend the next two, which went
well. Visitation was suspended in
February until the parents met with the Agency about their case plan progress
and outstanding warrants.
Minor was happy to see his
parents at visits; however, he was not overly disturbed when visits ended or
when his parents failed to visit. The
parents’ telephone contact with minor was also inconsistent; they did not call
more than once a week. The report
recommended termination of services because the parents had made minimal
progress on the case plan. The court
adopted the recommendation, terminated services and set a section 366.26
hearing.
Events Pending the Section 366.26 Hearing
The Agency sent the June
2011, ICWA notice of the July 2011 section 366.26 hearing only to the Cherokee
Nation. The notice included names and
birthdates for the maternal and paternal grandmothers and one maternal and one
paternal great-grandmother, but no other information. The notice did not reference father’s claim
of Comanche heritage. No notice was sent
to the Comanche tribe.
In June 2011, the
California Department of Social Services (DSS) filed an adoption assessment
informing the Agency that the current caretakers, the paternal grandparents,
felt it was in minor’s best interest to be adopted by a younger family because
the grandparents were beginning to develop age-related health problems which
would make long-term care difficult for them.
They did want to “remain a part of [minor’s] life,†but did not wish to
adopt him.
The parents’ visitation
had been sporadic and was currently set at once a month. DSS had begun a search for an adoptive
family. The maternal grandmother and the
maternal great-grandmother had been assessed for placement and found
unsuitable. DSS had located over 20
families interested in adopting minor and recommended termination of parental
rights.
The Agency sent another
ICWA notice of the proceedings on June 14, 2011--for
the first time referencing the Comanche tribe.
The notice was sent only to the Comanche tribe and, aside from including
the information that father claimed Comanche heritage, contained only the
information sent in the previous notice to the Cherokee Nation.
The Agency’s report
prepared for the section 366.26 hearing recommended termination of parental
rights. Minor was three years old and
healthy with no developmental or behavioral issues. The report reiterated the information in the
DSS adoption assessment and discussed the overall lack of visitation between
minor, his parents, and half sibling.
The parents visited monthly after services were terminated, but father
had to be reprimanded for expressing hostility toward the social worker and
discussing the case in front of minor.
Letters from the Cherokee and Comanche Nations, attached to the report,
indicated that minor was not eligible for tribal membership based on the
information in the notices.
Section 366.26 Hearing:
At the section 366.26
hearing held in August 2011, counsel for mother told the juvenile court mother
was dissatisfied. Mother then addressed
the court, stating that the case had not been “heard properly†and asking for a
“recess†because she was “confused right now because of some things that were
just brought to light just immediately.â€
The court asked if she wanted the matter set for hearing; mother agreed
that was what she wanted. The court set
a contested hearing and a readiness conference, ordering the parents to appear
at both hearings.
Neither parent appeared at
the readiness conference and the contested hearing date was confirmed.
The contested section
366.26 hearing commenced September 14, 2011.
Counsel for mother said his client had just told him she did not feel
she was properly represented and he interpreted her dissatisfaction as a
an attempt to delay the proceedings, it nonetheless invited mother to
speak. Mother voiced her concern that,
“We have not been represented properly through this whole thing.†After a brief exchange with mother, the court
took judicial notice of the entire file.
Opining that it saw no reason why any attorney in the case should be
removed, it denied what it interpreted as mother’s request to delay the hearing
to have the court appoint new counsel.
Discussions with the Paternal Grandmother
The hearing resumed with
testimony from the DSS adoptions specialist that minor was adoptable and a
prospective adoptive family had been identified. The adoptions specialist testified she had
discussed the long-term alternatives with the paternal grandmother, who wanted
to know if it was possible to find a family to adopt minor. The paternal grandmother did not want to
raise minor herself either in guardianship or adoption but wanted to maintain
contact with him. The adoptions worker
said she had explained that adoptive parents could change their minds about
contact. She was prepared to discuss all
alternatives with the paternal grandmother but the paternal grandmother said she
felt unable to provide long-term care to minor.
Nonetheless, the adoptions worker did superficially discuss the
long-term options but did not leave any literature because the paternal
grandmother did not want it.
The Agency also talked to
the paternal grandmother about her interest in adoption or guardianship. The paternal grandmother did not think she
was able to care for minor long-term because of his activity level and her
health issues and was not interested in either alternative.
Minor’s Relationship with Parents
The social worker testified
minor was close to his parents and had difficulty separating from them for a
while but, as visits had decreased in frequency he was having less
difficulty. At the last visit, when his
parents failed to arrive, minor did not cry or ask for them.
Mother testified she
believed there was a benefit to minor in continuing their relationship. She felt that termination of parental rights
would be detrimental to minor. She agreed
she had recently pleaded guilty to possession of methamphetamine pursuant to
proposition 36, but said she was innocent and was appealing the conviction.
Father testified about the
quality of visits with minor and also believed minor should have continuing
contact with him.
Adoption by the Paternal Grandmother
The paternal grandmother
testified minor had been in her care over a year. She said minor was excited to go to parental
visits, but he was very quiet afterwards although she was able to distract
him. She said relative guardianship was
suggested to her by mother’s attorney and if the court decided it was the
appropriate plan, she would do it.
However, as she had explained to the social worker and the adoptions
worker, she did not feel she could care for minor long-term either through
adoption or guardianship because she split her time between two different homes
caring for her mother and her adoptive father.
She did want to maintain contact with minor.
The Court’s Decision
In a written decision
issued the day after the hearing, the court found and ruled as follows: The parents were ordered to appear at the
readiness hearing but failed to do so and the Marsden motion was untimely; there was clear and convincing
evidence minor was likely to be adopted; the paternal grandmother was neither
willing to nor capable of providing a stable and permanent environment through
guardianship; there was insufficient evidence to find adoption would interfere
with a sibling relationship; and the parents did not show that the strength and
quality of their relationship with minor outweighed the security and sense of
belonging that a new family would offer him.
The court terminated parental rights and freed minor for adoption.
I
Relationship Exception
The
parents first contend the juvenile court erred by failing to apply the
beneficial parental relationship exception to adoption and thus avoid
terminating their parental rights.
Law
“‘At
the selection and implementation hearing
held pursuant to section 366.26, a juvenile court must make one of four
possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the
Legislature is adoption.
[Citation.]’ [Citations.] If the court finds the child is adoptable, it
must terminate parental rights absent circumstances under which it would
be detrimental to the child.†(In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There
are only limited circumstances permitting the court to find a “compelling
reason for determining that termination [of parental rights] would be
detrimental to the child.â€
(§ 366.26, subd. (c)(1)(B).)
One of these is where the parent has maintained regular visitation and
contact with the child and the
relationship, often referred to as the beneficial parental relationship
exception. (§ 366.26, subd.
(c)(1)(B)(i).) The “benefit†to the
child must promote “the well-being of the child to such a degree as to outweigh
the well-being the child would gain in a permanent home with new, adoptive
parents. In other words, the court
balances the strength and quality of the natural parent/child relationship in a
tenuous placement against the security and the sense of belonging a new family
would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not
terminated.†(In re Autumn H.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) Even frequent and loving contact is not
sufficient to establish this benefit absent a significant, positive, emotional attachment between parent and
child. (C.F., supra,
193 Cal.App.4th at p. 555; Autumn H., supra, 27 Cal.App.4th at p. 575.)
“Because
a section 366.26 hearing occurs only after the court has repeatedly found the
parent unable to meet the child’s needs, it is only in an extraordinary case
that preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.†(
78 Cal.App.4th 1339, 1350 (Jasmine
D.).)
B. Burden and Standard of Review
The
party claiming the exception has the burden of establishing the existence of
any circumstances which constitute an exception to termination of parental
rights. (C.F., supra, 193 Cal.App.4th
at p. 553.)
As
the parent must establish the existence of the factual predicate of the
exception--that is, evidence of the claimed beneficial parental
relationship--and the juvenile court must then weigh the evidence and determine whether it constitutes a
compelling reason for determining detriment, substantial evidence must support
the factual predicate of the exception, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) “On review of
the sufficiency of the evidence, we presume in favor of the order, considering
the evidence in the light most favorable to the prevailing party, giving the
prevailing party the benefit of every reasonable inference and resolving all
conflicts in support of the order.†(Autumn
H., supra, 27 Cal.App.4th at p. 576.) “‘[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence
for the ruling. . . . Broad deference
must be shown to the trial judge.’†(
at p. 1351.)
title="">[4]
C. Analysis
In this case, the parents,
except for a brief period of monthly visits, did not maintain regular
visitation. That fact alone is enough to
defeat the applicability of the exception.
However, even assuming regular visitation, they failed to meet their
burden.
Although it was clear
minor’s parents loved him and that he had positive feelings for them, their
behavior, including missing visits and inability to satisfactorily complete
their services, demonstrated that they were more focused on their own needs
than on minor’s. The case began when
minor was left to wander unwashed and uncared for; neither parent was aware of
his whereabouts, let alone his needs.
The parents did visit when scheduled to do so, apparently indifferent to
the effect this would have on minor, and when they did attend visits, behaved
immaturely. The juvenile court did not
abuse its discretion by concluding that the benefit to minor of continued
contact with his parents was outweighed by the security and the sense of
belonging a new family would confer on him.
II
Exception
The parents further
contend the juvenile court erred by failing to apply the relative placement
exception to adoption.
A. The Law
A second exception to
adoption is found where “[t]he child is living with a relative who is unable or
unwilling to adopt the child because of circumstances that do not include an
unwillingness to accept legal or financial responsibility for the child, but
who is willing and capable of providing the child with a stable and permanent
environment through legal guardianship, and the removal of the child from the
custody of his or her relative would be detrimental to the emotional well-being
of the child.†(§ 366.26, subd. (c)(1)(A).)
This exception permits the
court to order guardianship if the relative is willing and capable of providing
a stable permanent home and removal from the relative would be detrimental to
the emotional well-being of minor. We
explained the applicable the burden of
proof and standard of review in Part I, ante. Here, again, the parents cannot establish
either element of the exception.
B. Analysis
The paternal grandmother
made it clear that she did not feel able to provide long-term care for minor because
she was caring for aged parents and because of her own health. She believed the best solution for minor was
adoption by a younger family. She was
told of the guardianship alternative by both the social worker and the
adoptions worker but rejected it. There
was no evidence that separation from the paternal grandmother would be
sufficiently detrimental to minor’s emotional well-being as to outweigh the
benefits of a permanent and stable adoptive home. The juvenile court correctly concluded the
relative placement exception to adoption did not apply.
III
The parents next contend
that the notices sent to the tribes did not comply with the requirements of the
ICWA. The Agency responds that any error
was harmless. We agree with the parents
that remand is required.
The ICWA protects the
interests of Indian children and promotes the stability and security of Indian
tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions.
(25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Agency have an
affirmative duty to inquire at the outset of the proceedings whether a child
who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).) If, after the petition is filed, the court
“knows or has reason to know that an Indian child is involved,†notice of the
pending proceeding and the right to intervene must be sent to the tribe or the
Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2; Cal. Rules of
Court, rule 5.481(b).) Failure to comply
with the notice provisions and determine whether the ICWA applies is
prejudicial error. (In re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th
460, 472.)
State statutes, federal
regulations and the federal guidelines on Indian child custody proceedings all
specify the contents of the notice to be sent to the tribe in order to inform
the tribe of the proceedings and assist the tribe in determining if the child
is a member or eligible for membership. (§ 224.2; 25 C.F.R. § 23.11(a), (d),
(e); 44 Fed.Reg. 67588 No. 228, B.5 (Nov. 26, 1979).) If known, the Agency should provide name and
date of birth of the child; the tribe in which membership is claimed; the
names, birthdates, and places of birth and death, current addresses and tribal
enrollment numbers of the parents, grandparents and great grandparents as this
information will assist the tribe in making its determination of whether the
child is eligible for membership and whether to intervene. (§ 224.2; 25 C.F.R. § 23.11(a), (d), (e); 44
Fed.Reg. 67588 No. 228, B.5 (Nov. 26, 1979); In re D.T. (2003) 113
Cal.App.4th 1449, 1454-1455.)
Here, mother claimed only
Cherokee heritage, father only Comanche.
The early notices were clearly inadequate. While the last two notices included
birthdates, there were no current addresses, places of birth or death or
correct designation of the tribal ancestry claimed. The Agency, while not required to “cast
about†trying to find relatives with information, was in contact with both
paternal and maternal grandparents and could easily have made the necessary
inquiry to fill the gaps. (Cal. Rules of Court, rule 5.481(4)(A);
199.) Further, including all relevant
information in the possession of the Agency, e.g., that ancestry is claimed
only through a particular relative or that the family declines to provide
further information, can explain the lack of some information enabling both the
tribe and the appellate court to review the notice. Finally, the corrected notices were sent only
to the Cherokee Nation and the Comanche Nation.
The additional information should also have been sent to the remaining
Cherokee tribes. (In re C.B. (2010) 190 Cal.App.4th 102, 140; § 224.2, subd. (a)(3).)
IV
Motion
Mother next argues the
juvenile court erred in failing to hear her Marsden
motion. We are not persuaded.
In
a criminal case, when a defendant requests substitute counsel, the trial court
must permit the defendant to explain the specific reasons why the defendant
believes current counsel is not adequately representing him. (Marsden,
supra, 2 Cal.3d at pp. 123-124.) The court need not grant the request for
substitution of counsel absent a showing that denial would substantially impair
the parent’s right to the assistance of counsel. (Marsden,
supra, at p. 123;
7 Cal.App.4th 913, 917.) However, denial
of the opportunity to explain constitutes an abuse of discretion. (Marsden, supra, at pp.
123-124.)
Substitute
counsel should be appointed when, in the exercise of the court’s discretion,
the court finds either that counsel is not providing adequate representation or
there is such an irreconcilable conflict between the client and counsel that
ineffective representation is likely to result.
(People v. Smith (1993) 6
Cal.4th 684, 696.) Disagreement on trial
tactics does not necessarily compel appointment of new counsel. (People
v. Williams 1970) 2 Cal.3d 894, 905.)
The
court’s duty to permit a person represented by appointed counsel to state the
reasons for dissatisfaction with counsel only arises when the person in some
manner moves to discharge his current counsel.
There must be, at the very least, some clear indication by the individual that he wants a substitute
attorney. (People v. Freeman (1994) 8 Cal. 4th 450, 480-481;
281, fn. 8.)
In
a dependency proceeding, the parents have a statutory and a due process right
to competent counsel. (§ 317.5;
1143, 1153 fn. 6.) Juvenile courts,
relying on the Marsden model, have permitted parents to air their
complaints about appointed counsel and request new counsel be appointed. An exhaustive Marsden hearing is not required in a dependency action. It is only necessary that the juvenile court
“make some inquiry into the nature of
the complaints against the attorney.†(
930, 935, fn. 13 [original emphasis].)
The
initial section 366.26 hearing in August 2011 was the first time mother
addressed the court after her counsel first suggested she might want to bring a
Marsden motion the month before. At no time did mother tell the court she
wanted new counsel. When the court
interpreted her statement as a desire for a contested hearing, mother agreed. The prophylactic Marsden procedures were not triggered at the August 2011
hearing.
Mother did not appear at
the readiness hearing and so made no requests.
When she appeared at the contested hearing on September 14, 2011, she
claimed she had not been represented properly but did not clearly indicate she wanted substitute counsel. She did not make any effort to substantiate
her vague claim of inadequate representation, nor do we see any evidence of an
irreconcilable conflict. The juvenile
court did not abuse its discretion in denying the Marsden motion on this ground.
In its written ruling the
juvenile court found the Marsden
motion was untimely. While a Marsden motion
may be brought at any time, “‘[i]t is within the trial court’s discretion to
deny a motion to substitute made on the eve of trial where substitution would
require a continuance.’ [Citation.]†(
607.) By the time of the hearing, minor
had been a dependent for over two years, during which time mother made little
effort to reunify with him or even to visit him. After the trial court set a contested hearing
at her request, she failed to appear at the readiness conference without
explanation. She then appeared at the
hearing and could
not articulate why her situation merited a substitution of
appointed counsel. Under the
circumstances, we find no abuse of discretion by the juvenile court in denying
the motion on this additional ground.
Finally, mother argues
the court erred in failing to hold its limited Marsden inquiry in a closed proceeding. But the law does not require that a
even in a criminal case, particularly when mother did not request a closed
hearing and no information disclosed during the court’s limited inquiry
provided any advantage to the Agency in ongoing litigation. (People
v. Lopez (2008) 168 Cal.App.4th 801, 814-815; People v. Madrid (1985) 168 Cal.App.3d 14, 18-19.) No error appears.
The
orders terminating parental rights are reversed and the matter is remanded for
the limited purpose of permitting the Agency to comply with the notice
provisions of the ICWA. The Agency is
directed to make any necessary inquiry and promptly comply with the notice
provisions of the ICWA. Thereafter, if
there is no response or if the tribes determine minor is not an Indian child,
the orders shall be reinstated. However,
if a tribe determines minor is an Indian child and the court determines the
ICWA applies to this case, the juvenile court is
ordered to
conduct a new section 366.26 hearing in conformance with all provisions of the
ICWA.
DUARTE , J.
We concur:
BLEASE ,
Acting P. J.
HULL ,
J.
name="_ftn1" title="">[1] Further undesignated
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] People v. Marsden (1970)
2 Cal.3d 118 (Marsden).
