Opinion
F078987
02-21-2020
In re GREGORY A. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Carissa A. Rarick, Deputy County Counsel, for Plaintiff and Respondent. Kimball J. P. Sargeant, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD137650-01, JD137651-01, JD137652-01, JD137653-01, JD137654-01, JD137655-01)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Cynthia L. Loo, Commissioner. Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Carissa A. Rarick, Deputy County Counsel, for Plaintiff and Respondent. Kimball J. P. Sargeant, under appointment by the Court of Appeal, for Minors.
-ooOoo-
Dependency jurisdiction was taken over the six children of appellant T.T. (mother). At the disposition hearing, the juvenile court granted custody of one of the children, seven-year old Rayvon G., to his then noncustodial father R.G. and terminated jurisdiction over Rayvon. Mother was ordered to participate in family reunification services as to the other children. Mother appeals the dispositional judgment.
Mother contends (1) the juvenile court prejudicially erred by failing to make an express finding pursuant to Welfare and Institutions Code section 361.2, subdivision (c) of the basis for its determination to place Rayvon with his father and to terminate jurisdiction, (2) the juvenile court prejudicially erred by failing to appoint separate counsel to Rayvon and the other siblings because a conflict of interest existed, (3) the juvenile court miscalculated the period for which mother was to receive reunification services, and (4) the Kern County Department of Human Services (the department) failed to comply with inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) by failing to obtain and provide mother's paternal relative information to the tribes.
All further undesignated statutory references are to the Welfare and Institutions Code.
On February 5, 2020, while this matter was pending, the department requested we take judicial notice of minute orders from a hearing held pursuant to section 366.21, subdivisions (e) and (f), on January 27, 2020 in the underlying matter. The minute orders indicate the juvenile court ordered that Gregory A., D.A., E.T., N.T., and G.T. be returned to mother's care and that mother receive family maintenance services. There being no objection to our taking judicial notice of the minute orders, and good cause appearing, we grant the department's request and take judicial notice of the minute orders. The department contended at oral argument that such orders render mother's issue regarding reunification services and the ICWA notice moot. We agree these issues have been rendered moot by the juvenile court's orders returning the children to mother and ordering her to receive maintenance services. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Our recitation of the facts is not comprehensive of all the proceedings below and is focused on the facts relevant to the issues of this appeal.
Mother and her six children—Gregory, age 12; D.A., age 11; Rayvon, age six; E.T., age four; N.T., age three; and G.T., age one—lived with her mother (grandmother). Gregory and D.A.'s father is Gregory A., Sr., Rayvon's father is R.G., E.T.'s father is Milton H., N.T.'s father is O.N., and G.T.'s father is Jeremy M.
Mother's Child Protective Services History
In 2006, mother and Gregory tested positive for cocaine at the time of Gregory's birth. Dependency jurisdiction was taken over Gregory in Sacramento County. Mother completed substance abuse treatment, eventually reunified with Gregory, and jurisdiction was terminated.
In June 2007, a referral alleging general neglect was received in Sacramento County stating mother had been "high on methamphetamine" for one week. The allegation was deemed to be inconclusive.
In November 2007, a referral alleging caretaker absence/incapacity was received in Sacramento County stating mother had left Gregory and D.A. in the care of a "non-related family member." Dependency jurisdiction was taken over Gregory and D.A., and in December 2008, the children were placed with mother with family maintenance services. In March 2009, dependency was terminated.
In March 2012, a referral alleging general neglect was received in Sacramento County stating mother would not take eight-month-old Rayvon to the doctor for a cold, she would leave five- and six-year-old Gregory and D.A. alone for up to 30 minutes at a time, and she smoked THC and cocaine in front of the children. The allegation was deemed to be inconclusive.
In January 2013, a referral alleging general neglect, exploitation, and emotional abuse was received in Los Angeles County stating mother uses crack cocaine and leaves the substance and paraphernalia where the children have access. The allegations were deemed to be unfounded.
In July 2013, a referral alleging general neglect was received in Los Angeles County stating mother and grandmother use methamphetamine or crack and that mother was selling food stamps to buy drugs and not buying food for the children. The allegations were deemed to be inconclusive.
In June 2016, a referral alleging general neglect was received in Kern County stating mother and grandmother were using drugs. Mother tested positive for amphetamines, methamphetamines, Norco, and THC. The children reported feeling safe in the home and being well cared for. The allegation of general neglect was deemed inconclusive. In July 2016, a referral was received stating mother keeps asking for food, clothing, and diapers, "is a meth addict," and has "random people coming in and out of her home." The referral was "evaluated out due to an open referral."
In September 2016, a referral alleging general neglect and emotional abuse was received in Kern County stating mother and Jeremy M. were involved in a domestic violence incident while mother was pregnant. The allegations were deemed inconclusive. The department could not contact mother, as she "moves from place to place." Mother did not have the children in her care as they were in a legal guardianship with grandmother.
In March 2017, a referral alleging general neglect was received in Kern County stating mother tested positive for amphetamine at the time of G.T.'s birth. Mother denied drug use, and the children were observed to be healthy and appropriately cared for. The allegation was deemed inconclusive.
In July 2017, a referral alleging caretaker absence/incapacity was received in Kern County stating mother had left the children with a friend all night and did not respond to the friend's calls and texts the next morning. Another referral was received that month alleging physical abuse and stating Rayvon reported he gets a "whoopin" by both his mother and grandmother when he is bad. Upon investigation, Rayvon's statements were inconsistent and the allegation of physical abuse was deemed to be unfounded. The department released the children back to mother, but mother was arrested for assaulting G.T.'s father with her vehicle, and the children had no place to stay. The children were placed into protective custody and detained from mother, but at the jurisdictional hearing were released home to mother.
In March 2018, a referral alleging general neglect was received in Kern County stating Rayvon had not been picked up from school. Staff had to take him home, where grandmother "is asleep and the 'babies' are running around." Mother reported she had failed to pick up Rayvon twice due to a miscommunication with grandmother. When asked whether his mother used drugs, Rayvon replied yes, but his mother corrected him and said she smoked cigarettes. Both she and grandmother declined to drug test. The allegation was deemed inconclusive.
In April 2018, a referral alleging general neglect was received in Kern County stating E.T., N.T., and G.T. were found walking unsupervised in the street. When they were taken back home, mother was asleep and "'would not wake up.'" Mother stated she was sleeping because she was diabetic and did not want to use insulin. Mother participated in some services until May 16 when she "disappeared" and left the children in the care of grandmother. The allegations were determined to be inconclusive.
Present Dependency Petition
On May 29, 2018, the department received a referral alleging general neglect due to the family not having food or electricity in their home and being evicted. Mother reportedly had been "passed out" due to drug use and could not be awakened. Though mother had been given cash assistance in the form of three months' worth of rent, she had not paid rent. Mother also reportedly left the children in the care of grandmother for days at a time with no money or way to care for the children. Some of the children had gotten out into the streets, and the police had to be called. The allegation was substantiated, and the children were taken into protective custody.
On June 1, 2018, the department filed petitions on behalf of the children, alleging they came within the jurisdiction of the juvenile court within the meaning of section 300, subdivision (b). At a contested detention hearing held on June 11, 2018, the children were ordered to be released to mother. The children were transported to the motel where mother was staying. Mother received vouchers for shelter until June 14, 2018.
On the afternoon the children were released to mother, mother left the children in the care of grandmother in the motel room and did not return until the following morning to take a shower, then left again. Mother did not tell grandmother where she would be. On June 13, 2018, mother was arrested for petty theft in an incident where she stole the cell phone of a store proprietor after he had found her sleeping outside his business and given her $20. On June 14, she returned to the motel room to shower and left again. Grandmother expressed to the social worker via telephone on June 14, 2018, that she wanted a "stay away order" for mother. When asked whether mother was using drugs, grandmother replied, "'Not in front of me.'" During the social worker's call with grandmother, the social worker heard mother yelling in the background. When the social worker asked grandmother why mother was yelling, grandmother replied, "because I'm talking to you." Because of the information grandmother gave to the social worker in addition to the yelling, the social worker requested that another social worker check on the family. The social worker who visited the family's home did not note any concerns. The social worker asked if mother would consent to a voluntary drug test, but she declined.
On June 25, 2018, the department received a general neglect referral alleging N.T. and E.T. had been found crying on the balcony of their motel room. The police were called at approximately 4:00 a.m. When they responded to the room and knocked on the door, there was no answer. They took temporary custody of N.T. and E.T.; E.T. was unable to tell the police where his parents were. The police were eventually able to contact grandmother, who was inside the motel room and not aware the children had gotten out. Mother was not present. The police noted the conditions of the motel room were suitable. Mother returned to the motel, and the police left the children in her care and custody.
On June 27, 2018, social worker Brenda Gastelum visited the motel where the family was staying to investigate the referral. Gastelum expressed concerns with mother about the younger children being able to get out of the motel room. Gastelum also observed little to no food in the motel room. Gastelum gave mother resource information to access food banks and encouraged her to call 211 to obtain food for the children. Gastelum expressed concern that mother and grandmother may be abusing substances and asked if they would be willing to voluntarily drug test; both mother and grandmother declined to drug test.
On June 28, 2018, Gastelum returned to the motel room and noted that mother made efforts to keep the front door closed and inaccessible to the younger children's ability to open it. Gastelum observed there was still little food in the room, and mother told Gastelum she was planning on getting more food that day. Another social worker, Damona Norris-Kindred, arrived to go over mother's voluntary case plan with her. Norris-Kindred informed mother that her case plan consisted of substance abuse and child neglect counseling along with random substance abuse testing. Mother told Norris-Kindred she did not have a substance abuse issue and would not enroll in any classes until after speaking with an attorney. Gastelum informed mother she would be back that afternoon to check on the food. When Gastelum returned, mother was not there, and grandmother did not know where mother was or how to get a hold of her. Gastelum made efforts to contact mother but to no avail. Gastelum went to the motel room and contacted grandmother, who told the social worker mother was at a Wal-Mart store getting food. Gastelum went out looking for mother and was unable to find her.
On June 29, 2018, mother contacted Gastelum and told Gastelum she got money from a "friend" who she would not identify to Gastelum because "he is married." Mother was relying on the friend to pay for her motel room. Gastelum obtained a protective custody warrant on behalf of the children.
Gregory, D.A., and Rayvon were placed together with one foster family, and E.T., N.T., and G.T. were placed together with another foster family. The children's caretakers were willing to keep the children for as long as needed for reunification with their parents, but neither of the children's caretakers were willing to adopt or seek legal guardianship of them.
On June 29, 2018, the department filed first amended petitions on behalf of the children, alleging they came under the juvenile court's jurisdiction within the meaning of section 300, subdivision (b). The petition alleged mother was unable to provide the children with adequate food or shelter, was unable to provide regular care to the children due to substance abuse, and was unable to adequately supervise or protect the children.
On July 3, 2018, the children were ordered detained from mother. Mother and children were to have supervised visits twice a week for two hours. The siblings were to have supervised visits every other week for two hours. On July 7, mother was arrested for petty theft, trespassing, and conspiracy to commit a crime for stealing from a Wal-Mart store. On July 15, 2018, police were called because mother stole from a 7-Eleven store. The manager did not press charges, and mother was told not to return to the 7-Eleven. On July 27, 2018, mother was asked to voluntarily drug test and refused.
In July 2017, R.G., alleged father of Rayvon (father), contacted the social worker and expressed that he would like placement of Rayvon. Father lived in Sacramento County. Father told the social worker he had no child protective services history but did have a criminal history. Father said he was arrested four to five years ago for possession of cocaine for sale, and he was on probation until August 2017. Father indicated he no longer sells cocaine. Father told the social worker his probation officer could verify he is doing well, working, and being productive. Father said he was employed in home remodeling. The social worker found no criminal history for father in Kern County.
In a dispositional report dated August 20, 2018, the department stated that if father were to be elevated to presumed father, the department's recommendation would be to provide family reunification services to him because he was requesting placement.
On August 23, 2018, father's status was elevated to presumed father. At this hearing, father requested placement of Rayvon, and the department indicated father's home would be evaluated for placement. After the hearing, father spoke to the social worker. The social worker told father it would take his request under consideration but based on his history of criminal involvement with drug-related charges, the department would recommend he participate in counseling for substance abuse, voluntary drug testing, and a parenting education class. Father indicated he would willingly engage in the recommendations in the initial case plan and signed the case plan.
Father and Rayvon began having phone visits. Father had age appropriate conversations with Rayvon. Father and Rayvon told each other they loved each other, and Rayvon expressed wanting to visit with father in person. On September 15, 2018, Rayvon and father began to have supervised in-person visits. The two talked and played games and told each other they missed each other. At one visit, father gave Rayvon $40 and asked Rayvon what he was going to do with the money. Rayvon replied, "'I'm going to save the money so I can buy us a house.'" During the second visit, Rayvon asked father if he could come visit, and father told him he would arrange it with the social worker.
On September 9, 2018, mother was arrested for felony grand theft. Upon her arrest, law enforcement found a glass smoking pipe with drug residue, wrapped in a towel, stuffed inside mother's bra. Mother was released on September 26, 2018. As of September 27, 2018, mother had not enrolled in any component of her recommended voluntary case plan.
As of September 27, 2018, father had signed up for the wrong parenting class but had received a referral for the correct one. Father had started voluntarily drug testing.
On September 29, 2018, mother allegedly brought a gun to the visitation center. Mother's visits were suspended pending investigation and attempts to secure a safe visiting space. The department requested visits resume at the Juvenile Justice Center for safety, and the court granted the department's request.
On October 1, 2018, the court granted the department discretion to release Rayvon to father. At that time, the department did not utilize discretion because it was determined it would be best for father to first establish a consistent visiting relationship with Rayvon.
In a supplemental report dated October 15, 2018, the social worker noted that she had been working with mother since June 2018 and opined mother's behavior and appearance is indicative of an underlying condition which the department suspected to be substance abuse. The social worker reported she observed a "significant difference in [mother's] physical appearance [and] behavior in the last 5 months," and noted mother had been arrested for petty theft and/or grand theft approximately four times in a period of four months.
On October 19, 2018, the social worker met with mother after the court hearing. Mother told the social worker she felt her rights were being violated and asked for evidence for why her children were removed. The social worker directed mother to the reports that had already been provided to her and told mother the best way to reunify with her children was to participate in the voluntary case plan. Mother responded by saying her children should not have been removed.
At the jurisdiction hearing on November 27, 2018, the juvenile court found the allegations in the first amended petition true and the children were persons described by section 300, subdivision (b). The matter was continued for disposition so the department could comply with the ICWA notice.
In November 2018, background checks were conducted on father's household, which consisted of him, his girlfriend, and his girlfriend's daughter. A social worker completed a home inspection and found nothing of concern. Rayvon had an extended visit with father at his home in December 2018, and the visit went well.
Father requested a hearing to discuss whether Rayvon could be released to him, as the department had not yet exercised its discretion to do so. The hearing took place on January 8, 2019. Mother's counsel requested the court take judicial notice of father's arrest record from Sacramento County, which had not been included in any of the department's reports. Counsel for the department informed the court father's "criminal history came back and he has checked out." The court directed the department "in an abundance of caution" to "re-check" father's criminal history to make sure the court has all the information.
With regard to whether the department would exercise discretion to place Rayvon with father, counsel for the department stated the department's plan was to place Rayvon on an extended visit with father and hold visits with mother on Saturdays until disposition, at which time the department would recommend placement with father. Minors' counsel stated she agreed with the recommendation and noted the department had done extensive background checks on father, that he was participating in his case plan and had made "quite a bit of progress," that the department had assessed his home, and that "[e]verything checks out."
Mother's counsel objected to a court order being made before disposition as the department could exercise discretion to place Rayvon with father for extended visits. The court ordered all prior orders to remain in full force and effect.
On January 29, 2019, the department received information from the Sacramento County Sheriff's Department regarding father. The records indicated father was not currently on parole or probation but was listed as a drug offender. Father had various arrests ranging from 1992 to 2014.
On February 5, 2019, a social worker met with mother and mother appeared sluggish and was "slurring her words." Mother indicated to the social worker she completed her substance abuse screening and had an intake appointment, but mother was not able to provide proof of completion of the screening. Mother denied having a substance abuse problem. Mother refused to enroll in parenting classes because she felt there was never any neglect of her children. Mother was asked if she would voluntarily drug test, and she said she would submit to a test only if there was a stipulation the children would be returned to her if she tests.
Mother was consistent with her visits with the children and they were noted to be "[o]verall ... of positive quality."
On February 8, 2019, the social worker met with Rayvon. Rayvon expressed he enjoyed visits with father in Sacramento but that it was a "long ride." Rayvon reported when he's at father's home, he plays, sees his cousins, goes to stores, visits the beach, and goes fishing. Rayvon reported he did not get into trouble at father's house and liked father's girlfriend and her daughter. When asked if he wanted to live with father, Rayvon responded in the affirmative. Rayvon added he would not miss his brothers because they were "sometimes mean" to him.
In a supplemental disposition report dated February 12, 2019, the social worker indicated father had been participating in his case plan and completed a parenting class. Father had completed a substance abuse assessment, and it was determined he was not in need of counseling services. Father had been drug testing and tested negative for all illegal substances but positive for marijuana. Father admitted to using marijuana edibles one to two times per week for pain associated with degenerative discs and hip issues and has a medical marijuana card. The social worker reported father visits with and maintains a relationship with Rayvon, and Rayvon has overnight visits with father on the weekends. The social worker noted father's home had been assessed and cleared for placement, and the department observed an established bond between father and Rayvon. At the time of the report, the department recommended Rayvon be placed with father and his petition be dismissed. The social worker noted father had expressed a desire to allow Rayvon to maintain a relationship with his mother and siblings.
On February 15, 2019, the department released Rayvon to father. Father enrolled Rayvon in school. On February 28, 2019, father reported Rayvon was adjusting well and liked his school. The social worker informed father that Rayvon had been receiving counseling services in Kern County, and father said he agreed Rayvon needs to continue with counseling and was thinking about enrolling him, noting that Rayvon gets angry easily and is not always truthful. Father indicated he was working on minimizing Rayvon's time on electronics. The social worker spoke to Rayvon, and Rayvon reported he was doing fine. Rayvon told the social worker he did not want to go to the visits with his siblings and mother in Kern County because of the long ride. The social worker asked how the visits themselves went, and Rayvon replied his brothers were being mean to him and calling him names. Rayvon told the social worker that he hit D.A. after D.A. slapped him on the head and mother did not say anything. The social worker asked if he wanted to visit with mother, and Rayvon responded, "'I just want to see my dad, not my mom or brothers.'"
At a child and family team meeting held on March 1, 2019, mother again expressed she did not feel neglect counseling or substance abuse treatment were necessary and insisted she has never neglected her children and she does not have a drug problem.
On March 7, 2019, the social worker spoke to Rayvon again, and Rayvon reported things were going well with his father. Rayvon indicated he did not want to visit with his brothers because they were mean to him. The social worker asked if he wanted to visit with mother. Rayvon thought about it and said "nah." The department canceled the scheduled visit.
As of March 12, 2019, mother had not provided verification of enrollment or participation in any of her recommended case plan components.
The disposition hearing was held on March 18, 2019. Father's counsel made an offer of proof that father would testify Rayvon had been visiting with mother in the lobby of the courtroom for the entire morning until lunchtime, and father "believes that when the mother is doing well, she's a great mother, and he has no intention of keeping Rayvon from her." The social worker testified there was an obvious bond between Rayvon and father, and she saw no risk to Rayvon with father. She did not have any reason to believe father was trying to influence Rayvon not to see mother.
Minors' counsel requested the court follow the department's recommendation and argued father "has done everything to show that he is a safe parent" and he does not have a substance abuse problem, and mother had "done nothing" except deny she had any problems.
Mother's counsel argued there was not clear and convincing evidence to show return of the children to mother was a substantial risk to the children.
The juvenile court adjudged the children dependents of the court. It found clear and convincing evidence of a substantial danger to the physical health, safety, protection or physical or emotional well-being of the children if their physical custody were not removed from mother. It also found there are no reasonable means to protect the children's physical health without removal of the children from the physical custody of mother. The juvenile court further found mother had not made sufficient progress toward alleviating or mitigating the causes for the children's placement in out-of-home care. The juvenile court ordered the children be removed from the physical custody of mother and Rayvon remain placed with father. The juvenile court held Rayvon's placement was necessary and proper pursuant to section 366, subdivision (a). The juvenile court ordered mother receive family reunification services as to Gregory, D.A., E.T., N.T., and G.T. The juvenile court ordered Gregory A., Sr., receive reunification services as to Gregory and D.A. The juvenile court ordered Milton H. receive reunification services as to E.T. Reunification services were not ordered to be provided to O.N. because he was merely an alleged father who had not sought to establish paternity. Reunification services were not provided to Jeremy M. because the court found it would not benefit G.T. The juvenile court ordered sibling visitation every other week for one hour. As to Rayvon, the juvenile court terminated jurisdiction and awarded joint legal custody to mother and father, with sole physical custody to father. The court ordered visitation with mother for four hours in Rayvon's county of residence, with discretion to father to liberalize visitation.
Mother filed a notice of appeal.
DISCUSSION
I. Express Findings Pursuant to Section 361.2, Subdivision (c)
Placement with a noncustodial parent and subsequent termination of jurisdiction is governed by section 361.2. Under section 361.2, subdivision (a), the court shall place the child with a noncustodial parent who requests custody unless it finds "placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." A noncustodial parent also has a "constitutionally protected interest in assuming physical custody." (In re Isayah C. (2004) 118 Cal.App.4th 684, 697.) The party opposing placement has the burden to show by clear and convincing evidence the child will be harmed if the noncustodial parent is given custody. (In re Liam L. (2015) 240 Cal.App.4th 1068, 1081.) Clear and convincing evidence is evidence establishing a high probability and leaving no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)
Under section 361.2, subdivision (b),
"If the court places the child with the noncustodial parent, the court initially has three alternatives. The court may order the noncustodial parent to assume custody of the child, terminate juvenile court jurisdiction and enter a custody order. (§ 361.2, subd. (b)(1).) It may continue juvenile court jurisdiction and require a home visit within three months, after which the court may make orders as provided in subdivision (b)(1), (2) or (3). (§ 361.2, subd. (b)(2).) Or the court may order reunification services to be provided to either or both parents and determine at a later review hearing under section 366.3 which parent, if either, shall have custody of the child. (§ 361.2, subd. (b)(3).)" (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.)
The juvenile court's task when a noncustodial parent requests placement is a "two-step process: under subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court's jurisdiction should be terminated." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.)
Section 361.2, subdivision (c) requires the juvenile court to make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).
B. Analysis
The parties agree the juvenile court failed to make express findings for the basis of its determinations to (1) place Rayvon with father and (2) terminate dependency jurisdiction over Rayvon, and this failure constituted error. Respondent department, joined by minors, however, contend the error was harmless. We agree.
"Before any judgment can be reversed for [failure to make express findings under section 361.2, subdivision (c)], it must appear that the error ... 'has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.)" (In re J.S. (2011) 196 Cal.App.4th 1069, 1078 (J.S.).) An error is harmless if "it is not reasonably probable such findings, if made, would have" resulted in the outcome sought by the appellant. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, overruled on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)
We conclude appellant has failed to show she was harmed by the error.
1. Placement of Rayvon with father
When a noncustodial parent requests placement, under section 361.2, subdivision (a), the first prong of the juvenile court's analysis is whether the party opposing placement has met its burden, by clear and convincing evidence, that placement with the noncustodial parent would be detrimental to the child.
Here, Rayvon wanted to live with father and had been doing so for the month prior to the disposition hearing. He was by all accounts doing well. The social worker testified there was no risk to Rayvon being placed with father and there was a bond between them. Any evidence of detriment was sparse, much less clear and convincing, that placement would be detrimental to Rayvon.
Mother's primary claim of detriment is that father lived 250 miles away in Sacramento County, and Rayvon's placement with father would have a negative impact on Rayvon's relationship with his siblings. Though the juvenile court failed to make express findings pursuant to section 361.2, it did make an express finding that Rayvon's placement was "necessary and appropriate" pursuant to section 366, subdivision (a).
We recognize that section 366, subdivision (a), the section applied by the court, does not apply when a child is placed with a parent, but it does require the court to consider among other factors, "[t]he nature of the relationship between the child and his or her siblings"; "[t]he appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002"; "[i]f the siblings are not placed together in the same home, why the siblings are not placed together and what efforts are being made to place the siblings together, or why those efforts are not appropriate"; "the frequency and nature of the visits between the siblings"; "[a]ny plan to increase visitation between the siblings"; and "the impact of the sibling relationships on the child's placement and planning for legal permanence." (Id., subd. (a)(1)(D).) Under section 366, subdivision (a), the court may also consider "whether the siblings were raised together in the same home, whether the siblings have shared significant common experiences or have existing close and strong bonds, whether either sibling expresses a desire to visit or live with his or her sibling, as applicable, and whether ongoing contact is in the child's best emotional interests." (§ 366, subd. (a)(1)(D)(ii).
In making a finding that Rayvon's placement under section 366, subdivision (a) was "necessary and appropriate," the juvenile court implicitly made the finding Rayvon would not suffer detriment by continuing to live with father, even considering the effect it would have on his relationship with his siblings. The juvenile court's finding pursuant to section 366 is supported by the record.
Mother cites In re Luke M. (2003) 107 Cal.App.4th 1412, 1422, to support her claim that "[w]hen evaluating whether placement with a previously noncustodial parent would be detrimental to a child's emotional well-being [citation], the court must consider the sibling relationships and evaluate the appropriateness of keeping the siblings together." Luke M. does not assist mother. In Luke M., the juvenile court had denied a noncustodial father living in Ohio placement of his children because of the children's demonstrated strong attachments with their half siblings whom they would be leaving behind. (Id. at pp. 1418-1419.) At the disposition hearing, the social worker testified it was her opinion it would be detrimental for the children to reside with their father because one child cried every time she brought up the subject and "'can't even stand the thought of having to leave'" his siblings and relatives. The other child sobbed when discussing her visit with her father, was "extremely bonded" to one of her siblings, and wanted to live with her mother and siblings. (Id. at p. 1418.) One child testified and the juvenile court observed "'the raw emotions and true sense of fear [of] separation from [his] siblings.'" (Id. at p. 1419.) The appellate court in Luke M. held the juvenile court was permitted to consider sibling relationships when making placement decisions under section 361.2 (Luke M., at p. 1423), and substantial evidence supported the juvenile court's finding that placement would be detrimental (id. at p. 1427).
Luke M. is distinguishable from the present case. Luke M. stands for the proposition that sibling relationships may be considered in determining whether placement is detrimental when there is evidence of detriment before the court. Luke M. is not apposite here where there was no such evidence, i.e., evidence of a strong sibling attachment. Rather than expressing "fear" over leaving his siblings behind, Rayvon expressed a desire to avoid them. Even after a month away from his siblings, Rayvon did not appear to miss them. To the contrary, he consistently declined to visit them. There is no indication he experienced any negative consequences from the separation. In short, there was no clear and convincing evidence before the juvenile court to rebut the presumption that Rayvon should be placed with father pursuant to section 361.2, subdivision (a).
There is not a reasonable probability the juvenile court would not have placed Rayvon with his father had it complied with the requirements of section 361.2, subdivision (c).
2. Termination of jurisdiction
If the juvenile court places a child with a noncustodial parent, the next prong of analysis is whether "'there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.'" (In re Karla C. (2010) 186 Cal.App.4th 1236, 1245.)
Mother contends the court's error was prejudicial in part because whether to retain jurisdiction was not "thoroughly explored," particularly for the effect it would have on Rayvon's relationship with mother and Rayvon's siblings. To support this contention, she cites and distinguishes J.S., supra, 196 Cal.App.4th 1069. In J.S., at the time of the dispositional hearing, the parties anticipated the minor would be placed in the noncustodial father's home, with visitation rights reserved to the mother. (Id. at p. 1074.) A lengthy hearing commenced where the mother's attorney insisted the court should exercise ongoing supervision over the matter to ensure services were made available to both parents. (Ibid.) The court agreed with the mother's position at the outset of the hearing. (Ibid.) After hearing evidence and argument, however, the juvenile court ultimately decided to terminate jurisdiction without making express the basis for its decision. (Id. at p. 1076.) The mother appealed, contending the juvenile court's failure to make such findings was prejudicial. (Id. at p. 1079.) The appellate court found the error harmless because there was no reasonable probability that had the juvenile court complied with the statutory requirement, it would have answered differently the question whether to terminate its jurisdiction. (Ibid.) The appellate court noted the juvenile court "addressed itself assiduously to that question," which was the predominant subject of hearings over portions of three days, and even changed its mind over the course of the proceedings. (Ibid.) The appellate court also noted the juvenile court "was never presented with a solid reason" to retain jurisdiction. (Ibid.)
Mother extrapolates from the J.S. court's opinion, noting the juvenile court in that case had "addressed itself assiduously" to that question in order to suggest that we must not affirm the juvenile court's judgment in the present case unless there is some explicit evidence on the record that the court considered retaining jurisdiction. Mother contends "the [J.S. trial] court's failure to make express findings was harmless, not because of the amount of evidence that was before the court but, rather, because the court 'addressed itself assiduously to' the question whether to terminate jurisdiction.... It is the court's analysis, not the evidence alone, that governs a prejudice analysis in this context." We do not agree such a narrow reading of J.S. is warranted under the circumstances of this case. In J.S., it was relevant that there was some evidence on the record that the juvenile court considered its options because arguments for retaining jurisdiction were advanced by the parties. Here, unlike in J.S., whether to retain jurisdiction over Rayvon was not at issue. No party, not even mother, offered evidence or argument supporting the retention of jurisdiction over Rayvon.
Rather, the department affirmatively recommended jurisdiction over Rayvon be terminated, and the minors agreed. The department's recommendation was amply supported by the record. First, there was no evidence of a need for further reunification services on father's part. Father immediately participated in his voluntary case plan, which included substance abuse counseling, parenting classes, and random drug testing. Father completed the substance abuse assessment and no drug counseling was required, and he completed his parenting class. Father had also complied with random drug testing and did not test positive for any illegal substance. Father's home had been cleared and the social worker had been checking in with Rayvon and father for a month and everything was going well. The social worker testified at the disposition hearing that the department did not feel Rayvon was at any risk with father. We note mother does not make any claim that jurisdiction should have been retained because of any concerns about father. The juvenile court read and considered the department's reports, heard the arguments where no party, not even mother, requested the court retain jurisdiction over Rayvon, and adopted the findings and orders as recommended by the department.
Mother argues in part that if the juvenile court had made the findings required in section 361.2, subdivision (c), there was a reasonable probability it would have retained jurisdiction over Rayvon because its order was based on the "erroneous belief a visitation order would be enforceable as to Rayvon." This argument is tenuous. The juvenile court's sibling visitation order has not been appealed by an aggrieved party in this appeal or in any appeal to our knowledge, and we express no opinion on the enforceability of the sibling visitation order. Mother does not appear to be formally challenging the order, nor does she have standing to do so as she is not an aggrieved party. (In re Frank L. (2000) 81 Cal.App.4th 700, 703 ["[A] parent must ... establish she is a 'party aggrieved' to obtain a review of a ruling on the merits"].) We note the minors here ask us to affirm the dispositional order. Even if mother is correct, our conclusion would not change. The record does not support a reasonable probability that the juvenile court would have retained jurisdiction over Rayvon solely to enforce sibling visitation for the remainder of the period the siblings remained dependents of the court. At the time of the disposition hearing, Rayvon did not want to attend visits, and the department had canceled the most recent visit at Rayvon's request. No objection by minors' counsel was made, and the court made no comment about this cancellation. Thus, even under court supervision, visits between Rayvon and his siblings were not taking place at his request.
To support her contention the visitation order is "unenforceable," mother cites In re A.R. (2012) 203 Cal.App.4th 1160, 1171. In In re A.R., dependency petitions were brought on behalf of minors A.M. and A.R. A.R.'s father lived with mother at the commencement of the proceedings. Following the jurisdictional hearing, the court found "not true" all the counts relating to A.R., and A.R.'s petition was dismissed. (Id. at p. 1168.) By the dispositional hearing approximately a month later, the mother and the father had ended their relationship, and the father and A.R. had moved to Texas. (Id. at p. 1169.) The juvenile court never took jurisdiction over A.R. nor adjudged him a dependent of the court. In re A.R. was in a different procedural situation from the present case. And mother has not cited any cases supporting her argument where jurisdiction has been taken over the child in question.
At oral argument, mother cited a recent case, In re Adam H. (2019) 43 Cal.App.5th 27, in support of her argument that the court's failure to make express section 361.2 findings was not harmless. In Adam H., the juvenile court failed to place the minor with his noncustodial father, finding it would be "premature" to "return" the child to father "'given the fact [the minor] does not have a history of a relationship with his father.'" (In re Adam H., at p. 31.) The juvenile court did not apply section 361.2. The appellate court found the juvenile court's failure to apply section 361.2 to be error, noting the court "was required ... to place [the child] with [the] father unless such placement would be 'detrimental to the safety, protection, or physical or emotional well-being of the child.'" (43 Cal.App.4th at p. 32.)
The appellate court found the error not harmless and declined to imply a detriment finding because the evidence was not clear in support of it. (In re Adam H., supra, 43 Cal.App.4th at pp. 32-33.) The appellate court noted the mother aggressively threatened the father when he tried to maintain contact with the child, and the child was doing very well under the care of the father during unmonitored visits and the father was receptive to services and cooperative with the department. (Id. at p. 33.) The only evidence in support of detriment advanced in the proceedings below was that the child did not know the father very well. (Ibid.) The appellate court decided to remand the matter because the juvenile court did not expressly consider placement with the father under section 361.2, and there was conflicting evidence as to whether such placement would be detrimental to the child. (Ibid.)
In re Adam H. is distinguishable from the present case and does not persuade us to come to a different conclusion. As we have explained, there was not conflicting evidence before the court regarding either of the prongs of a section 361.2 analysis. If anything, Adam H. further demonstrates the importance of the preference for placement with a noncustodial parent when it is requested.
We find the closing words in J.S. equally applicable here:
"It is true that the law reflects great solicitude ... for the fundamental rights of parents in their relationship with their children. Thus, where the choice is between return to a parent and permanent placement with someone else, great efforts should be and are taken to bring about the former disposition. In the present case, however, two parents—mother and father—stood before the court. The father could immediately provide a safe and nurturing home; the mother could not.... The father showed every sign of
cooperating freely in maintaining the child's relationship with the mother. The Department stood ready to supply whatever services it found necessary or desirable to serve the child's best interests. The family court stood with open doors to address any insoluble disputes over custody or visitation. Conceivably, the juvenile court itself could reassert jurisdiction upon a proper motion and showing. (See In re D.R. (2007) 155 Cal.App.4th 480.) Given these facts there is no mystery in the court's ultimate decision that its jurisdiction in the matter should end." (J.S., supra, 196 Cal.App.4th at p. 1081.)Likewise, there is no mystery here why the juvenile court terminated jurisdiction. Considering the circumstances, there can be no reasonable probability the court would have reached a different conclusion had it made express findings under section 361.2, subdivision (c). We therefore find any error in the juvenile court's failure to articulate the basis for its determination is harmless under the circumstances of this case.
II. Separate Counsel for Rayvon and His Siblings
A. Relevant Background
At the hearing on January 8, 2019, wherein father's counsel requested the department utilize its discretion to place Rayvon with father, mother's counsel objected to minors' counsel representing Rayvon and the other children. Mother's counsel noted, "We're talking about separating Rayvon permanently, basically, from his siblings, and I don't believe it's appropriate for the same attorney to be representing the siblings as well as Rayvon. It should be one or the other, and whichever one it is, then a different counsel should be appointed for the remaining siblings who are not being moved or who we're not discussing to move to."
In response to mother's objection, the court asked counsel how conflicts are "normally addressed."
Minors' counsel responded:
"[W]e don't have a conflict. Rayvon—I would be asking—if the recommendation—which it's written in this supplemental that the recommendation will be to place and dismiss Rayvon with his father. That is not removing him from his siblings for the rest of his life and just cutting
... off that relationship. I would ask for an exit order for visitation at that time. [¶] But there's nothing—there's nothing ...that's a conflict between the rest of the siblings. The siblings aren't together right now anyway. They are not placed together. So if they went—some of the other ones went on track for adoption and the older ones didn't want the younger ones adopted, for instance—is how it usually comes up—and they felt so strongly about it that—obviously , they would need their own attorney. That's when we usually get out. But at this point, there is no conflict, and I'm confident that I can represent all of the minors."
Mother's counsel continued to argue that Rayvon was placed with two of his siblings and all the siblings had been raised by mother. He concluded, "It is clearly a conflict ... to advocate for Rayvon to go to Sacramento and have his case dismissed because of the impact it will have on the other siblings who don't have an independent voice concerning Rayvon being moved if it's the same counsel."
Minors' counsel responded that because the court has jurisdiction over all the children, it could make an exit order for visitation. Mother's counsel responded such an order would not be enforceable over someone who was not under the court's jurisdiction.
The juvenile court declined to relieve minors' counsel and appoint new counsel for Rayvon's siblings.
B. Relevant Law
Section 317, subdivision (c) provides, in relevant part, that a child in dependency proceedings is entitled to appointed counsel "unless the court finds that the child ... would not benefit from the appointment of counsel.... [¶] ... A primary responsibility of counsel appointed to represent a child ... pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child .... [¶] ... Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does not represent another party or county agency whose interests conflict with the child's ... interests." (Id., subd. (c)(1)-(3).) Once appointed, "[c]ounsel shall continue to represent the ... child ... unless relieved by the court upon the substitution of other counsel or for cause." (§ 317, subd. (d).)
In In re Celine R. (2003) 31 Cal.4th 45, the California Supreme Court explained:
"When first appointing counsel in a dependency matter, the court may generally appoint a single attorney to represent all the siblings. ... After the initial appointment, the court will have to relieve counsel from multiple representation if, but only if, an actual conflict arises." (Id. at p. 58.)
C. Analysis
Mother argues an actual conflict existed at the time of the January 8, 2019, hearing, requiring the juvenile court to appoint separate counsel for Rayvon's siblings. She contends Rayvon's interest in being placed with father and having jurisdiction over him terminated conflicted with his siblings' interest in reunifying with him. For the sake of her argument, we assume both that mother has standing to raise this issue on appeal and that she has not forfeited this argument by failing to renew her objection at the time of the disposition hearing. Nevertheless, mother's argument fails.
Mother's claim that there existed an actual conflict of interest is theoretical. In terms of Rayvon's placement with father, mother relies primarily on general assertions of the importance of sibling bonds, rather than the facts of the present case. The only facts mother mentions are that Rayvon had lived with his siblings his whole life and that father lived 250 miles away. Both facts were known to and considered by the juvenile court in making its dispositional order despite the siblings not having separate counsel. Further, as we have explained, placement with a noncustodial parent is mandatory unless there is clear and convincing evidence that placement would be detrimental to the child, not to any siblings. (See § 361.2, subd. (a).) Minors' counsel was charged with advancing any potential arguments, if any existed, as to why placement with father would be detrimental to Rayvon. Mother fails to explain how separate counsel for the other children would have had an influence on whether Rayvon was placed with father.
With regard to whether jurisdiction should have been retained over Rayvon, had minors' counsel thought it was in their best interest to reunify as a group with Rayvon if mother decided to engage in services, she could have advocated for that disposition without conflicting with Rayvon's interests, as there would then be a reason to retain jurisdiction over him. We accept minors' counsel's assurance to the juvenile court that no conflict existed regarding the recommendation to terminate jurisdiction over Rayvon. We also note the department did not cite any concerns regarding Rayvon's plan for its effect on his siblings. Finally, we note minors are parties to this appeal and request we affirm the judgment.
We conclude mother's claim of conflict is based on generalizations and hypotheticals. The juvenile court did not err by failing to appoint separate counsel for Rayvon's siblings.
III. Reunification Period
Mother contends the portion of the dispositional order providing reunification services are to expire on August 29, 2019, was miscalculated and should be vacated. The department argues that because the children have been returned to mother on maintenance services, her issue regarding reunification services has been rendered moot. We agree with the department. An issue on appeal is rendered moot "[w]hen no effective relief can be granted." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) Because mother has progressed from reunification services to maintenance services, we cannot grant her any effective relief regarding the length of time she should be provided with reunification services. In any event, even if we were to consider mother's claim on the merits, her claim would fail.
Section 361.5, subdivision (a)(1)(A) provides that for children three years of age or older, services shall end 12 months after the date the child entered foster care as provided in section 361.49, unless the child is returned to the home of the parent or guardian. Section 361.5, subdivision (a)(1)(B) provides that for children under three years of age, services shall be provided for a period of six months, but no longer than 12 months from the date the child entered foster care as provided in section 361.49, unless the child is returned to the home of the parent or guardian.
Section 361.49 provides:
"Regardless of his or her age, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian." (Italics added.)
Under the plain language of the statutes, for children three years and older, the period a parent is to be provided reunification services is the period between disposition and 12 months from the date the child entered foster care. For children under three, the period is set for review the earlier of six months of services or 12 months after the child entered foster care. Section 361.5 provides authority to the court to extend services up to 18 months after the child is removed from the physical custody of the parents.
Here, the children were removed from the physical custody of mother on June 29, 2018. Sixty days after this removal would be August 28, 2018. The jurisdiction hearing took place on November 27, 2018. Thus, the earlier of the two dates is August 28, 2018. The children "entered foster care" within the meaning of section 361.49 on August 28, 2018. The court committed no error setting by the reunification period to end on August 29, 2019.
Mother contends she was entitled to, for the children older than three, a full 12 months of services, and for the children younger than three, a full six months of services, from the date of the disposition hearing. To support mother's claim that the services "clock" begins to run at the time of the minor's dispositional removal, as opposed to initial detention, she cites Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 165, and In re T.W. (2013) 214 Cal.App.4th 1154, 1167-1168. Mother fails to explain how these cases support her claim. We find these cases do not support her claim. Neither case discusses when the period for reunification services must end, only when it begins. Neither authority supports mother's contention she is entitled to a minimum period of services. Finally, mother fails to mention, let alone show, that she was somehow prejudiced by the court's allegedly erroneous order. We thus reject this contention.
IV. The ICWA Inquiry and Notice
Mother contends the department did not comply with inquiry and notice provisions of the ICWA, and the trial court erred by finding the ICWA did not apply as to mother.
The department contends the issue has been rendered moot by the juvenile court's subsequent order that the children return home to mother. We agree with the department.
The ICWA notice and inquiry provisions apply to proceedings that may culminate in an order for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. (25 U.S.C. § 1911; § 224.3.) "Foster care placement," is "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution ... where the parent ... cannot have the child returned upon demand, but where parental rights have not been terminated." (25 U.S.C. § 1903(1)(i); see § 224.1, subd. (d)(1)(A).) "Termination of parental rights," within the meaning of the ICWA, is defined as "any action resulting in the termination of the parent-child relationship." (25 U.S.C. § 1903(1)(ii); see § 224.1, subd. (d)(1)(B).) "Preadoptive placement" means "the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement." (25 U.S.C. § 1903 (1)(iii); § 224.1, subd. (d)(1)(C).) "Adoptive placement" means "the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." (25 U.S.C. § 1903(1)(iv); § 224.1, subd. (d)(1)(D).)
As the children have been returned to mother, and Rayvon has been placed with father, there is no pending "foster care placement," "termination of parental rights," "preadoptive placement," or "adoptive placement" proceeding. Thus, at this point in the proceedings, we cannot grant any effective relief to mother.
Should the department seek to remove the children from mother again, it would need to file a subsequent or supplemental petition. (§§ 342 [subsequent petitions], 387 [supplemental petitions].) Section 297 provides in part that when a subsequent (§ 297, subd. (a)(2)) or a supplemental (§ 297, subd. (b)(2)) petition is filed, the ICWA inquiry and notice requirements of section 224.3 are triggered. In the case that the department does seek removal of the children from mother's care, the juvenile court will have to make a finding as to whether the ICWA applies. Should there be any issues with the ICWA inquiry or notice were that to occur, mother could raise the issue in a subsequent writ petition or appeal.
DISPOSITION
We conclude the issues mother raises with regard to the period of reunification services ordered and the ICWA inquiry and notice are moot. In all other respects, the judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.