In re Y.L.
Filed 6/4/13 In re Y.L. 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(San
Joaquin)
----
In re Y.L., a Person
Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.S. et al.,
Defendants and Appellants.
C071787
(Super. Ct. No. J05709)
T.L.
(father) and J.S. (mother), the parents of two-year-old Y.L., appeal from an
order of the San Joaquin County Juvenile Court terminating their parental
rights.
On appeal,
father contends the juvenile court erred when it (1) entered a
dispositional order bypassing his reunification
services before it found the dependency petition was true, and
(2) failed to inquire regarding his heritage as required by the Indian
Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). Mother joins in father’s arguments and
asserts that, if the order terminating parental rights is reversed as to
father, it must also be reversed as to her.
We conclude that while the juvenile court may have entered its
prematurely, the court reaffirmed the order at a later hearing. In any event, any error was harmless. With regard to ICWA, we conclude there is no
evidence an inquiry was made as to father’s Indian heritage. Accordingly, the matter must be remanded for
ICWA compliance.
FACTUAL AND PROCEDURAL BACKGROUND
Circumstances
In January
2011, Y.L. was born by cesarean section at a local hospital. Nine days later, mother experienced
difficulty breathing and returned to the hospital where she tested positive for
methamphetamine. Hospital staff
contacted child protective services (CPS) expressing concern that, if mother is
using methamphetamines, she may be unable to care for Y.L.
Later that
month, a social worker interviewed mother who stated father did not participate
in Y.L.’s life, but his mother (the paternal grandmother) resided next door and
cared for Y.L. while mother went to medical appointments.
Mother
indicated she had four other children who were not in her care.
tested positive for methamphetamine at his birth. The others were not in her care because she
had been imprisoned for two years for burglary.
Mother denied she currently was using drugs and suggested the recent
positive test had been caused by her use of an inhaler.
Mother
underwent a drug assessment that recommended she undergo random drug
testing. But two months passed and, due
to financial difficulties, mother did not begin the random testing. Father was not involved with Y.L. and his
whereabouts remained unknown. Y.L. was
not detained.
In May
2011, a petition was filed alleging Y.L. came within the provisions of Welfare
and Institutions Code section 300, subdivisions (b) [failure to protect], (g)
[no provision for support], and (j) [abuse of sibling].
hospital and mother’s denial of current or recent drug use, mother’s failure to
undergo random drug testing, the social worker’s inability to contact mother,
and mother’s failure to keep an intake appointment at an outpatient drug
testing program. The petition also
alleged the parents have extensive criminal histories that put Y.L. at “greatly
increased risk of abuse and neglect,†father’s whereabouts and ability to care
for Y.L. are unknown, and mother’s extensive history of substance abuse led to
the removal and subsequent adoption of five half siblings.
Neither
parent appeared at the initial hearing in May 2011. The court ordered Y.L. detained and issued
a protective custody warrant.
In late
May, mother was cited to appear in court.
She made her first appearance on June 14, 2011. Mother identified father as the father of
Y.L., indicated she did not know his whereabouts, and stated his mother resides
next door to her. The court appointed
counsel for mother and ordered her to take Y.L. to a children’s shelter. However, mother did not do so, and the court
issued a bench warrant for her arrest.
At the
jurisdiction hearing on June 28, 2011, the court was informed mother had
failed to surrender Y.L. and their whereabouts were unknown. The court found that notice had been given
and found the petition was true.
Later that
day, mother’s counsel advised the court that mother was in custody and Y.L. was
with her maternal aunt in Stockton.
Still later that day, mother’s counsel told the court Y.L. and the
maternal aunt were in Imperial County.
At a contempt hearing the next day, mother telephoned the paternal
grandmother who brought Y.L. to the court.
The grandmother stated she did not know the whereabouts of father. The bench warrant for mother was recalled and
she was granted supervised visitation with Y.L.
The July
26, 2011, disposition report stated three addresses had been identified for
father, including the addresses of mother and the paternal grandmother. Mother continued to deny knowledge of
father’s whereabouts.
The report
indicated ICWA does or may apply based on mother’s claim of Apache
ancestry.
The report
recommended mother’s reunification services be bypassed pursuant to section
361.5, subdivision (b), paragraphs (10) [termination of reunification for half
siblings], (11) [termination of parental rights to half siblings], and (12)
[conviction of a violent felony]. The
report recommended father’s services be bypassed pursuant to paragraphs (10)
and (11).
In August
2011, a contested disposition hearing
was set for September 1, 2011, and a hearing for ICWA issues and personal
jurisdiction as to father was set for September 27, 2011. ICWA notices containing mother’s information
were sent to the Bureau of Indian Affairs (BIA) and various Apache, Blackfeet,
and Cherokee tribes.
At the
September 1, 2011, contested disposition hearing, the juvenile court noted
that father, who was not present, had received notice at two of the three
identified addresses. Based on a
declaration of paternity attached to the disposition report, the court declared
father the presumed father of Y.L. The
court adjudged Y.L. a dependent child of the court, bypassed both parents’
reunification services, scheduled a selection and implementation hearing,
orally advised mother of her right to petition for an extraordinary writ, and
ordered that father receive a writ notice at all three of his possible
addresses.
At the
September 27, 2011, hearing this exchange occurred:
“[Counsel
for San Joaquin County Human Services Agency (Agency)]: Your Honor, does the Court show on the 1st of
September you proceeded in the father’s absence and found the petition true?
“THE
COURT: I found [father] was the presumed
father. [¶] . . .
[¶] And notice of that hearing to
father, notice was given. Did I take
juris[diction] to father previous?
“[Counsel
for Agency]: No. That’s what I was wondering. Did the court proceed in his absence on the
1st of September? I have it on for
juris[diction] today.
“THE
COURT: No, not on the 1st of
September. Mother was the only one that was present and she submitted on the bypass.†(Both italics added.)
No counsel
advised the court that it had bypassed
both parents on September 1, 2011.
The matter was continued to provide notice to father.
Father was
not present at the hearing on October 18, 2011.
After finding that father had been properly noticed for the hearing at
all three addresses, the juvenile court found the petition’s “allegations as to
him to be true.†When counsel for the
Agency noted that the disposition report had recommended bypassing services for
father, the court responded, “I think I’ve already acted. [¶] .
. . [¶]
I acted on it in advance,†effectively reiterating its earlier
ruling. The court ordered that writ
notice be sent to father’s three addresses.
The selection
and implementation report indicated father recently had contacted the agency
regarding visits with Y.L. He had not
participated in the dependency proceedings and did not establish a parent-child
relationship with her. Mother had
continued to deny her unresolved issues with substance abuse. The recommendation was to terminate both
parents’ parental rights.
At the
December 28, 2011, selection and implementation hearing, the juvenile court
noted father had been personally served for the hearing but was not
present. The court was informed father
was in custody and needed to be transported.
The January
24, 2012, status review report stated mother had been arrested for petty theft
with a prior theft related conviction and had a projected release date in March
2012. The January 2012 status review
hearing was continued because both parents were in custody.
The
February 1, 2012, periodic review hearing was father’s first appearance in
these proceedings. Father gave the
paternal grandmother’s address as his mailing address and indicated he was
listed on Y.L.’s birth certificate.
Counsel was appointed for father and the matter was continued.
At the
February 15, 2012, periodic review hearing, father’s counsel expressed the
belief that father had not received notice of previous proceedings, and the
lack of notice prevented his receipt of reunification services. The court told counsel the issue needed to
be addressed by motion. It ordered the
parents to be present at the April 18, 2012, selection and implementation
hearing.
In April
2012, the Agency filed a declaration describing its efforts to identify tribal
affiliation and ICWA responses from the tribes.
The responses indicated Y.L. was not eligible for membership in any of
the tribes. The Agency also filed a
supplemental selection and implementation report indicating a prospective
adoptive family for Y.L. had been identified.
The report stated the parents had visited Y.L. Although their interaction was friendly, it
did not reflect a parent-child relationship.
At the
April 18, 2012, selection and implementation hearing, father did not object to
the ICWA declarations filed with the juvenile court or to the court’s
subsequent ruling that ICWA did not apply to this matter. The parents requested a contested
hearing. Father’s request for an
increase in visitation was denied.
On April
23, 2012, father filed a section 388 petition requesting reunification
services. The petition was denied
because father’s circumstances had not changed and reunification services were
not in Y.L.’s best interest.
At the
August 3, 2012, contested selection and implementation hearing, the juvenile
court heard testimony from the visitation supervisor and the parents. Father testified he had four visits with Y.L.,
each lasting an hour. Mother testified
that, with the exception of eight visits missed as a result of her
incarceration, she had maintained weekly visits with Y.L.
Following
the presentation of testimony, the juvenile court ruled that no evidence had
been presented to show any detriment to Y.L. if parental rights were
terminated. The court noted that, since
detention, Y.L. has spent a total of four hours with father. Neither parent had shown Y.L. would suffer
detriment were the adoption to proceed.
The court ordered the termination of both parents’ parental rights.
DISCUSSION
Notice to Father
Father
contends the juvenile court erred when it entered a dispositional order
bypassing his reunification services before it found the dependency petition
was true. He claims the dispositional
order is void, and the subsequent termination of parental rights should be
vacated. We disagree.
“In dependency matters, parents are
entitled to notice and an opportunity to be heard at every stage of the
proceeding in order to protect their fundamental interest in the companionship,
care, custody and management of their children.
[Citations.] But parents are not
served with process in the usual sense.
[Citation.] Dependency
proceedings often commence on an emergency basis with a detention hearing, and
under section 290.1, notice of a detention hearing may be ‘written or
oral.’ [Citation.] If the parents were present at the detention
hearing, it is permissible to thereafter serve a copy of the petition and a
notice of the jurisdictional and dispositional hearings by first-class
mail. [Citations.] If
parents were not present at the detention hearing, they must be personally
served with a copy of the petition and notice of the jurisdictional and dispositional
hearings served by ‘certified mail, return receipt requested.’ [Citation.]
Notice of the review hearings held under section 366.21 and 366.22,
which generally follow the jurisdictional and dispositional hearings, may be
provided by ‘first-class mail addressed to the last known address of the person
to be noticed.’ [Citation.]†(In re
Jennifer O. (2010) 184 Cal.App.4th 539, 545-546; italics added.)
In this case, father was not
personally present at the detention hearing, and his whereabouts remained
unknown at the time of the June 28, 2011, jurisdiction hearing. Although the juvenile court found the
petition true and took jurisdiction over Y.L., father remained entitled to
notice by personal service or certified mail, return receipt requested. (§ 291, subd. (e)(1); In re Jennifer O., supra, 184 Cal.App.4th at pp. 545-546.)
The July 26, 2011, disposition
report revealed the Agency had found three potential addresses for father. At the hearing on August 2, 2011, the
Agency’s counsel informed the juvenile court it had not “act[ed] on
juris[diction] to father.†In other
words, the court had not ruled on whether father had received notice pursuant
to section 291, subdivision (e)(1). The
Agency’s counsel acknowledged it “need[ed] to serve [father] for the next
hearing.†The court scheduled a hearing
on September 27, 2011, to review whether service on father had been made.
At the
September 1, 2011, hearing, the juvenile court bypassed both parents’
reunification services, scheduled a selection and implementation hearing,
orally advised mother of her right to petition for an extraordinary writ, and
ordered that father receive a writ notice at all three of his possible
addresses.
Then, at
the September 27, 2011, hearing, the juvenile court and the Agency’s counsel
confirmed it had not previously “take[n] juris[diction] to father.†In other words, the court had not ruled on
whether father had received the notice to which he was entitled. The court’s ensuing statement that, “on the
1st of September [m]
she submitted on the bypass,†indicates the court had not intended to
bypass both parents’ reunification
services at that hearing. (Italics
added.)
At the
hearing on October 18, 2011, the juvenile court found father had been properly
noticed for the hearing at all three of his addresses and then found the
petition’s “allegations as to him to be true.â€
The latter finding was not redundant of the earlier (June 28, 2011) finding that the petition was
true because, as the court explained, “really juris[diction] is as to the
child.†It appears the court’s earlier
finding had not been intended as an adjudication against father.
When counsel for the Agency
noted the disposition report had recommended bypassing services for father, the
court responded, “I think I’ve already acted.
[¶] . . . [¶] I
acted on it in advance.†Counsel for the
Agency replied, “[y]ou did that on September the 1st.†It appears the court reaffirmed its September
1, 2011, dispositional findings as to father at the October 11, 2011,
hearing.
The
juvenile court’s arguably premature action against father on September 1, 2011,
was harmless by any standard. (People
v. Watson (1956) 46 Cal.2d 818, 836; Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) The only difference between the
September 1 and October 11 hearings is the fact that father had received the
statutory notice at the later hearing.
Nothing in the record suggests the court would have made a different
determination as to father had it been facing the issue for the first time on
October 11, 2011.
Father
disagrees, contending the juvenile court’s premature action on
September 1, 2011, caused him “clear†prejudice because he was “deprived
of the statutory time limits.†But he
does not identify any relevant time limit or explain how the delay, of less
than two months, caused him any prejudice.
We deem the point to be without
foundation. (Atchley v.
635, 647.)
In any event, father re-litigated
the reunification issue in his section 388 petition. But he did not establish that reunification
services were in Y.L.’s best interest.
No prejudicial error appears.
II
as to Father’s Indian Heritage
Father contends
the juvenile court erred when it terminated his parental rights in the absence
of evidence the court or the agency had inquired as to father’s Indian
heritage. We agree.
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.)
To facilitate participation, notice of the pending proceeding and the
right to intervene must be sent to the tribe or to the BIA if the tribal
affiliation is not known.
(25 U.S.C. § 1912(a); § 224.2, subd. (a).) Once notice is provided, it must be sent for
each subsequent hearing until it is determined the ICWA does not apply. (§ 224.2, subd. (b); In re Marinna J.
(2001) 90 Cal.App.4th 731, 736.)
Father is entitled to raise
the notice issue on appeal notwithstanding his counsel’s failure to object in
the juvenile court. (
63; In re Marinna J., supra, 90 Cal.App.4th at p. 739; see Nicole
K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.)
Section 224.3, subdivision (a),
provides in relevant part: “The court
[and] county welfare department . . . have an affirmative and
continuing duty to inquire whether a child for whom a petition under
Section 300 . . . is to be, or has been, filed is or may be an Indian
child in all dependency proceedings . . . if the child is
. . . in foster care.â€
(Italics added.) Because this
duty of inquiry was “continuing,†it was operative during the pendency of this
case and we consider whether the court’s and social worker’s efforts were
sufficient to satisfy the duty.
It is undisputed that neither the
juvenile court nor the social worker made any inquiry of father at the time of,
or following, his first appearance in the case on February 1, 2012.
The Agency claims any error is
harmless because father never asserted any tribal affiliation in the juvenile
court or on appeal. In response, father
makes an offer of proof that he has Apache and/or Blackfeet heritage.
(Citing, e.g., In re Rebecca R. (2006)
143 Cal.App.4th 1426, 1431 [father “should have made an offer of proof or other
affirmative representation that, had he been asked, he would have been able to
proffer some Indian connection sufficient to invoke the ICWAâ€].) Although the offer of proof is more
appropriately made in an opening brief,
there is no possible prejudice to the Agency.
We vacate the order terminating parental rights and remand for ICWA
compliance.
DISPOSITION
As to both parents, the order
terminating parental rights is vacated.
The matter is remanded for the purpose of providing adequate Indian
Child Welfare Act notice to the relevant Apache and Blackfeet tribes. If any tribe responds that the child is an
Indian child or eligible for enrollment, the court shall proceed as required by
the Indian Child Welfare Act. If no
tribe responds that the child is an Indian child or eligible for enrollment,
the court shall reinstate the order terminating parental rights.
HOCH , J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
name="_ftn1" title="">[1] Mother refers to Y.L. having four half
siblings, yet a later report lists five half siblings with whom mother had
failed to reunify. The number of half
siblings is not at issue nor are the half siblings parties to this appeal.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Welfare and Institutions Code.
