Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from an order of the Superior Court of Los Angeles County, Ct. No. CK32888 Jacqueline Lewis, Referee. Reversed and remanded with directions.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant D.S.
Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant J.M.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
Parents appeal from an order of the juvenile court terminating their parental rights under Welfare and Institutions Code section 366.26. They assert the trial court abused its discretion by refusing to continue the selection and implementation hearing. We disagree.
All undesignated statutory references are to this code.
The parents also contend the order must be reversed because respondent Department of Children and Family Services (DCFS) and the court failed to satisfy the notice requirements of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. (ICWA). DCFS concedes this error and we agree that the order must be conditionally reversed. Accordingly, we will remand the matter solely to ensure compliance with the ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants J.M. (father) and D.S. (mother) are the parents of B.M., born in July 1999. Mother is also the mother of B.M.’s half-sister, who is now an adult. In mid-May 2006, after her parents’ arrest for felony burglary, DCFS placed six-year-old B.M. with her aunt and uncle, in whose custody she remained throughout the pendency of the case and who have been approved to adopt her.
On May 31, 2006, DCFS filed a petition pursuant to section 300, subdivisions (b) and (j) alleging that: (1) mother and father each had a history of substance abuse; (2) father was currently using illicit drugs and had a history of drug-related criminal activity; (3) the parents had failed to provide B.M. with routine dental care, causing her to suffer extensive dental decay and unnecessary pain; and (4) mother had never reunified with B.M.’s half-sister, who became a dependent of the juvenile court in 1989 as a result of mother’s substance abuse and neglect.
At the detention hearing held on May 31, 2006, mother was present but father was not. DCFS reported that father admitted to a history of drug abuse. Mother denied that she then had or that she had ever had a drug problem. B.M. had been living in motels with her parents. The aunt had enrolled B.M. in school, but mother made no effort to ensure B.M.’s attendance. Since 2005, B.M.’s maternal grandparents and later her aunt, had been picking B.M. up at various motels where the parents lived, to take her to school. B.M. had a severe speech impediment and extensive tooth decay. She had never been taken to a dentist. The court detained B.M., continued placement with the aunt and uncle and set a combined jurisdictional and dispositional hearing for June 30, 2006.
This, even though the petition sustained in the 1989 dependency action involving B.M.’s half-sister included a count for cocaine and marijuana use, and mother’s conceded addiction to cocaine.
In June 2006, DCFS submitted a combined jurisdictional/dispositional report. Because father was incarcerated, DCFS was unable to interview him but reported that he had a criminal history dating back to 1983, and arrests and convictions for, among other things, grand theft, assault with a deadly weapon, robbery, burglary and possession of controlled substances. The report noted mother continued to deny that she had a drug problem. The aunt and uncle believed that mother used drugs, although they had never actually seen her do so. B.M.’s maternal grandfather told DCFS that he had found mother’s drugs and paraphernalia a few months earlier. He and B.M.’s maternal grandmother also believed that mother was a drug addict. DCFS reported that mother had unspecified, but “chronic criminal arrests,” and no permanent residence. The aunt and uncle volunteered to continue caring for B.M. and wanted to adopt her, if the family was unable to reunify.
DCFS recommended that the juvenile court deny reunification services to both parents. As to mother, the recommendation was based on: (1) her willful abandonment of and failure to reunify with B.M.’s half-sister; (2) her persistent refusal to admit she had a drug problem; (3) her chronic criminal history and transient lifestyle; (4) her family’s unwillingness to continue to help her based on her substance abuse; (5) her lack of employment skills or a means to support herself; and (6) the unlikelihood that she would extricate herself from a “lifestyle of deterioration” spanning 20 years. (§ 361.5, subds. (b)(9), (10), (13).) As to father, the recommendation was based on his ongoing drug abuse, his long term drug-related criminal history, and the unlikelihood that he would be able to effect the significant changes necessary to provide a stable and appropriate home for B.M. (§ 361.5, subd. (b)(13).)
Mother did not appear at the June 30, 2006 hearing. Both parents’ counsel and father, who was in custody, were present. Father said that he would not contest the allegations of the petition. Mother’s attorney denied the allegations of the petition on her behalf and requested a contested jurisdictional hearing. The court continued the jurisdictional/dispositional hearing to August 2, 2006.
Mother did not appear at the August 2, 2006 hearing, but her attorney did. Father and his attorney were present; father, still in custody, pleaded no contest. The court sustained the petition, denied reunification services for mother (§ 361.5, subd. (b)(13)), ordered DCFS to provide father reunification services, including individual and substance abuse counseling, random drug testing and parenting education, and granted both parents monitored visitation. The court warned father that it intended to establish a permanent plan for B.M. by July 31, 2007.
At the review hearing on January 9, 2007, at which both parents were present, DCFS reported that father, who had been in custody at the time of the August hearing, was released from jail in early October 2006. Soon thereafter, DCFS provided him with transportation passes to facilitate visits with B.M. and with referrals for drug counseling. Although in mid-October 2006 father participated in an initial assessment at a drug treatment center, he delayed obtaining services until December 2006. In December, he submitted to two drug tests; one test result was positive and one was negative. By January 2007, father was visiting B.M. every week. He generally interacted well with his daughter and she enjoyed and looked forward to his visits. Mother also visited B.M. weekly and DCFS reported that she was usually “appropriate” with her daughter. Mother and father each lived in shelter care.
Both parents were present at the June 29, 2007 review hearing. DCFS informed the court that in April 2007, father had once again been arrested, but was released a few days later. Mother had been arrested in May 2007 and remained incarcerated at the time DCFS prepared its written report. DCFS also reported that between December 8, 2006 and April 19, 2007, father had tested positive for drugs four times and, between February 1, 2007 and May 24, 2007, he had missed six tests. He tested negative for drugs once in late April. Father had maintained “routine and adequate” monitored weekly visits with B.M. and hoped to reunify with her once he had his own residence. DCFS reported that, prior to her incarceration, mother “occasionally” visited B.M.
DCFS recommended that the court continue reunification services for father. B.M.’s attorney argued that father’s services should be terminated. Although she acknowledged that father wanted to continue reunification, she argued that father’s recent arrest, continued drug dependence, lack of employment and lack of appropriate housing demonstrated that he would not be able to reunify with B.M. within the next six months. The court ordered the parents to return and continued the contested hearing to July 31, 2007.
Both parents arrived late for the hearing set on July 31. Father’s attorney explained that father had a long commute (from Lancaster to Monterey Park), and had been delayed because of transportation problems. Mother’s attorney offered no explanation for mother’s tardiness. The court agreed to reopen the hearing in the afternoon.
At the hearing, father testified that he had completed a substance abuse program for parolees, expected to finish his current six-month drug treatment program within days, and had participated in recovery and parenting classes, and weekly counseling sessions. His last positive drug test was in May 2007. He was unaware that a missed drug test was considered a “dirty” test. Since learning that fact, he had not missed a test. His most recent drug test (July 27, 2007) was negative. He attended 12-step meetings and had a sponsor. This period of sobriety was the longest period of sobriety he had experienced in the past 10 or 15 years. He presented evidence of successful completion of his most recent drug treatment program. The treatment center informed DCFS that father tested positive for methamphetamines four times while in the program, most recently in mid-May 2007 but confirmed that each of the three tests taken since that date was negative.
Later, he said he had been sober at some unspecified time in the past for about a year.
The court terminated father’s reunification services. It acknowledged that he had made a good start on the road to sobriety. Nonetheless, the court considered it important that father had been drug-free for only 60 days during the 14 months in which this action had been pending or, indeed, in the past 10 to 15 years. Sixty “clean” days did not constitute significant progress in resolving the problems precipitating B.M.’s detention, nor did it demonstrate that father had the ability to complete the objectives of his case plan or adequately to provide for his daughter’s safety and protection in the near future. The court scheduled a selection and implementation (§ 366.26) hearing for 8:30 a.m. on December 4, 2007. The court ordered the parents to return on that date without further notice, and warned them that it might terminate their parental rights and free B.M. for adoption at the next hearing.
They were also served personally with notice of the hearing.
Both parents attended the hearing on December 4, 2007. DCFS’s report noted that, after the hearing in July, both father and mother had been arrested and incarcerated – mother in late August, and father in mid-September 2007. Before these recent incarcerations, each parent had regularly visited B.M. When father was released in November, he resumed visits.
B.M. was thriving in the care of her aunt and uncle. She was developmentally on track and receiving adequate grades in school. Her dental problems had been resolved. The adoptive homestudy had been approved, and her aunt and uncle – who have been involved in B.M.’s life since she was an infant – remained ready, willing and able to take on the parenting challenges of adoption. DCFS reported that although B.M. had a bond with her biological parents and was happy to continue the visits with them, she also “seemed fine” with the plan of adoption. In September 2007, B.M. told the case worker that she enjoyed living with her aunt and uncle, but would like to live with her biological parents if she got the chance again. By November 2007, however, B.M. told DCFS that she loved her parents, but knew that they did “bad things,” and that she had to be adopted. Apart from a speech impediment, for which she was receiving speech therapy, B.M. appeared to be physically and emotionally healthy. Nonetheless, she was on a waiting list for counseling and, according to her attorney, she needed therapy “because the somewhat sporadic contact with her parents, due to their incarceration, had caused . . . some problems . . . .” DCFS recommended that the court terminate parental rights, and free B.M. for adoption. Father and mother requested a contested hearing, which the court set for January16, 2008. The court ordered the parents to return on that date at 8:30 a.m., without further notice, and again warned them it might terminate parental rights at that hearing.
On January16, 2008, the case was called at some point during the morning session. The parents’ attorneys were present, but both father and mother were absent. The attorneys requested a continuance but admitted that neither had had any contact with his or her client that day. The court denied the continuance, expressly finding that good cause had not been shown and that a continuance was not in B.M.’s best interest.
Apparently, the parents did arrive at court at some point on January 16 because they filed notices of appeal on that date.
The hearing proceeded. The court found that B.M. was likely to be adopted, that no statutory exception to adoption applied and terminated parental rights. Father and mother each appealed.
Mother has adopted father’s arguments. Accordingly, except as necessary, our discussion refers to appellants, collectively, as “the parents.”
DISCUSSION
1. Denial of continuance
The parents contend the juvenile court abused its discretion by denying a continuance of the selection and implementation hearing, depriving them of an opportunity to establish a meritorious “parental relationship” exception to termination of parental rights and adoption. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
We review a juvenile court order denying a continuance for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) We will not disturb the court’s ruling unless its decision was arbitrary, capricious, or patently absurd and resulted in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) Courts may continue dependency proceedings only on a showing of good cause and only if the delay is not contrary to the child’s interests. (§ 352, subd. (a).) In exercising its discretion and “considering the minor’s interests,” the court must “give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (Ibid.) Continuances are expressly discouraged and meant to be difficult to obtain, particularly when they infringe on the maximum time limits under the code. (In re Elijah V., supra, 127 Cal.App.4th at p. 585; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811 [oral requests for continuances made at the section 366.26 hearing are particularly disfavored]; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242-1243 (Jeff M.).)
The parents argue that the court abused its discretion in denying the continuance, considering their attorneys’ inability to explain their absences, and the court’s awareness of the parents’ previous tardiness due to transportation difficulties and a long commute. They argue that they had planned to oppose DCFS’s recommendation of adoption as B.M.’s permanent plan, and had asked the court to set the case for a contest on the applicability of the “beneficial contact” exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
We are satisfied, however, that the juvenile court did not abuse its discretion in denying the request to continue the hearing. The excuse that the parents had been late for previous hearings because of transportation difficulties did not mandate a continuance, particularly in light of the court’s warnings, at two earlier hearings, that the permanency planning hearing was crucial to retention of their parental rights. At the most recent hearing on December 4, 2007, when the court explicitly told the parents – who had arrived very late – that, at the contested hearing on January 16, 2008, it would “be addressing the best permanent plan for [B.M.], which could include the termination of [their] parental rights and freeing her for adoption,” so, it was “important that [they] re-appear.”
Neither parent’s brief addresses whether he or she showed good cause at the hearing to justify a continuance, much less demonstrates the mandated showing. Other than appellate counsels’ speculation, neither parent offers any explanation for his or her absence from the hearing on January 16, 2008, the day they knew their parental rights were at stake. Neither parent’s attorney explained to the trial court why a continuance was necessary, advisable, or in B.M.’s interest.
We reject father’s assertion that a continuance was required because his attorney, Thomas Hayes, was “essentially new” to the case and needed time to prepare. First, the attorney was not new to the case. He had appeared once or twice in this case on father’s behalf in the past, and is a member of the firm that was appointed to and has represented father since January 2007. (Cf. PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 392, citing 1 Vapnek et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2006) ¶¶ 3:19, pp. 3-5 to 3-6 [“Where a client retains a law firm . . . the client’s relationship extends to all members of the firm or organization”].) The firm is not new to the case.
Further, neither parent contended before the trial court, that a continuance was not contrary to B.M.’s interest. (§ 352, subd. (a).) In any case, the record supports the court’s conclusion that it was contrary to B.M.’s interest to continue the hearing. When deciding whether to grant a request for continuance, the juvenile court must “ give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a).) Continuances are intended to be quite difficult to obtain, particularly at such a belated stage. (Jeff M., supra, 56 Cal.App.4th at pp. 1242-1243.) By the time the section 366.26 hearing is set, the court is no longer concerned with reunification; it is squarely and appropriately focused on “the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
B.M. had already been in foster care for 20 months by the time of the January 2007 hearing. She had been in foster care for seven months before father even began to comply with his case plan. Based on her failure to reunify with B.M.’s sibling, the court never offered mother reunification services. Throughout this proceeding, both parents continued to abuse drugs, at least intermittently, and each had been arrested and incarcerated multiple times. Despite strong evidence to the contrary, mother never admitted that she has a drug problem. Granted, father had made commendable progress, but at the time of the hearing, it was of only short duration. The court was aware of that nascent progress and of the generally positive visits between B.M. and her parents when they showed up, just as it was aware of B.M.’s disappointment when they did not. Given these facts, the court was justified in concluding that to delay providing her with stability and permanence was contrary to B.M.’s interest. Nor do we agree with father that had the court granted a continuance “there was a good chance [father] could have shown that the parental relationship exception applied.” We note that the court found the parental relationship exception did not apply and the parents do not challenge the sufficiency of the evidence to support that conclusion. On this record, it is unlikely that father could have provided any critical new information to counter that the best interest of B.M. supported termination of parental rights.
2. ICWA notice was insufficient
The parents contend the court erred in finding that the ICWA did not apply and DCFS agrees, as do we.
At the outset of this action, mother indicated that she might have Blackfoot heritage. DCFS investigated and received additional information indicating B.M. may also have Cherokee heritage on both sides of her family. In June 2006, the juvenile court ordered DCFS to provide ICWA notice to the appropriate tribes and the Bureau of Indian Affairs (BIA). On August 30, 2006, the court reviewed copies of the ICWA notices and the tribes’ responses, and determined that the ICWA did not apply. Neither parent was notified of or present at that hearing. Mother’s counsel was present, but father’s was not. We conclude that the ICWA notice was defective. It misstates B.M.’s date of birth, does not contain information about B.M. or her parents’ cities of birth or her parents’ former addresses, and is missing potentially useful information about father that was available to DCFS. (See § 224.2, subds. (a)(5)(A) [requiring that notice state child’s name, birthdate and birthplace], (a)(5)(C) [requiring that notice state, among other things, the names, current and former addresses, birthdates, places of birth and death, and any other known identifying information of the child’s parents, grandparents, and great-grandparents].)
The ICWA protects tribes’ and families’ rights by setting minimum standards for the removal of Indian children, encouraging such children’s placement in homes reflecting Indian culture, and allowing tribes to take jurisdiction over dependency proceedings involving foster placement of, or termination of parental rights to, an Indian child at any point in those proceedings. (25 U.S.C. §§ 1902, 1911; In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) To assure tribal participation in dependency proceedings, juvenile courts must conduct a threshold inquiry into whether a child in a dependency proceeding is or may be an Indian child, and if so, to notify the BIA, and any known tribes in which the child might be eligible for membership, of the proceeding. (Cal. Rules of Court, rule 5.481(a), (b) [formerly rule 5.664 (d)]; In re S.B., supra, 130 Cal.App.4th at pp. 1157-1158.) If such notice is defective, in an appeal from an order terminating parental rights, we will invalidate actions taken in violation of ICWA and remand the case. (In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385; In re I.G. (2005) 133 Cal.App.4th 1246, 1252, but see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 781 [disagreeing with In re Brooke C.].)
Because the ICWA notice requirements were not satisfied, we will reverse and remand solely for the purpose of assuring compliance with those requirements.
DISPOSITION
The order terminating parental rights is reversed subject to the following conditions: The matter is remanded to the juvenile court with directions to order DCFS to comply with the notice provisions of the ICWA. If, after proper notice, a tribe claims B.M. is an Indian child, the juvenile court shall proceed in conformity with the provisions of the ICWA. If, alternatively, no tribe claims B.M. is an Indian child, the judgment terminating parental rights shall be reinstated.
We concur: MALLANO, P.J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Second, father’s attorney did not request a continuance on this basis. Finally, it is apparent from the closing argument he made on father’s behalf, that he was familiar with this case, and knew what his client wanted. Father is not assisted by In re Julian L. (1998) 67 Cal.App.4th 204. In Julian L., the court held that the juvenile court improperly refused to grant a continuance to provide a parent’s newly appointed counsel a chance to speak with her. The appellate court found that circumstances compelled a brief continuance to afford counsel an opportunity to ascertain the mother’s wishes and to effectively represent her and it would not have a negative effect on the minor’s interest. (Id. at p. 208.) Here, however, the court effectively found the opposite, that no compelling cause existed to grant a continuance, that father’s attorney was cognizant of his client’s wishes, and that a delay in the proceedings would not serve B.M.’s interests.